Incremental Term Loan Commitments. (a) The Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”). (b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%. (c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing. (e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (TMS International Corp.), Term Loan Credit Agreement (TMS International Corp.), Term Loan Credit Agreement (Tube City IMS CORP)
Incremental Term Loan Commitments. (a) The Lead Borrower mayshall have the right, by written notice to in consultation and coordination with the Administrative Agent (signed by a Responsible Officer as to all of the Borrower) matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time, request time that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrowers and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Lead Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 after the Closing Date and all Indebtedness incurred pursuant to Section 10.04(xxvii)(A) shall not exceed the sum of (x) $100,000,000 (the “First Lien Fixed Dollar Incremental Amount”) less the aggregate amount of Indebtedness and commitments incurred under the Second Lien Fixed Dollar Incremental Amount, plus (y) the sum of all voluntary prepayments of Term Loans, Refinancing Notes and Indebtedness incurred pursuant to Section 10.04(xxvii) that ranks pari passu with the Term Loans (limited, in an aggregate amount not the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to exceed $80,000,000 from one such Refinancing Notes or more Incremental Term Lenders other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) (which may include in each case other than with the proceeds of long-term Indebtedness (other than Indebtedness under the ABL Credit Agreement)) in each case prior to the date of incurrence of any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth Loan Commitments plus (iz) an unlimited amount so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of such date would not exceed 3.50 to 1.00; (vi) the amount proceeds of all Incremental Term Loans incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vii) each Incremental Term Loan Commitment Agreement shall specifically designate, with the approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofSection 2.15(c) are satisfied), (iiviii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrowers shall be Obligations of the Borrowers under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on which a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrowers, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit L (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued at the Applicable Margin relating Borrowers’ expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence respective Tranche proportionately; and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to To the extent any the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of add such Incremental Term Loans shall be ratably increased by to the aggregate principal amount then outstanding Borrowings of LIBO Rate Term Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term LoansLoans having short Interest Periods i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Term Loans of such Tranche and which will end on the last day of such Interest Period). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 3 contracts
Samples: First Lien Term Loan Credit Agreement (PAE Inc), First Lien Term Loan Credit Agreement (PAE Inc), First Lien Term Loan Credit Agreement (PAE Inc)
Incremental Term Loan Commitments. (a) The So long as the Incremental Term Loan Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, each Borrower mayshall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request, at any time and from time to time after the Restatement Effective Date and prior to the date which is 12 months prior to the then latest Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to such Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice such Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan Commitments, Commitment Agreement as provided in an aggregate amount clause (b) of this Section 1.15 such Lender shall not be obligated to exceed $80,000,000 from one or more fund any Incremental Term Lenders Loans, (which may include ii) any existing Lender (including any Eligible Transferee who will become a Lender) willing to may so provide such an Incremental Term Loans Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be made available to a single Incremental Term Loan Borrower and shall be denominated in their own discretion. Such notice shall set forth Dollars, (iiv) the amount of the each Tranche of Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of Incremental Term Loans (including Eligible Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 1.15 shall not less than $10,000,000 exceed the Maximum Incremental Term Loan Commitment Amount (it being understood and in integral multiples of $1,000,000 in excess thereof)agreed, (ii) however, to the date on which extent that any such Incremental Term Loan Commitments are requested to become effective (obtained but later expire, terminate or are voluntarily reduced in each case without being utilized, the “Increased Amount Date”), (iii) whether amount of such Incremental Term Loan Commitments are so expired, terminated or voluntarily reduced may again be available to be obtained under this Section 1.15 within the limits set forth herein), (vi) the up-front fees and, if applicable, any unutilized commitment fees and/or other fees, payable in respect of each Incremental Term Loan Commitments or commitments Commitment shall be separately agreed to make term loans with pricing and/or amortization terms different from by the respective Incremental Term Loans (“Other Term Loans”).
(b) The Loan Borrower and each Incremental Term Loan Lender shall execute (and deliver with all such fees to be disclosed in writing by the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the respective Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory Borrower to the Administrative Agent), (iivii) the final maturity date each Tranche of any Other Incremental Term Loans shall be have (I) (x) an Incremental Term Loan Maturity Date of no earlier than the then latest Maturity DateDate as then in effect, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (ivy) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of any Other Term then outstanding Loans shall be no shorter than with the remaining longest Weighted Average Life to Maturity and (II) an “interest rate” or “interest rates” applicable to such Tranche of the Incremental Term Loans. If the Applicable Margin Loans (which, for such purposes of this sentence only, shall be determined by the Administrative Agent and deemed to include all upfront or similar fees or original issue discount (amortized over the life of such Incremental Term Loans) payable to all Lenders providing such Incremental Term Loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Tranche of Incremental Term Loans) that may (at such time or from time to time thereafter) exceed the “interest rates” applicable to the Term Loans provided that, in the event that the “interest rate” excess applicable to such Tranche of Incremental Term Loans shall at such time be greater than 0.50% (or its equivalent), the Applicable Margin for the Tranche B Term Loans, the Tranche C Term Loans and each other then existing Tranche of Incremental Term Loans shall be increased by such amounts, and for such time periods, as applicableare needed so that at no time shall the “interest rate” for the respective new Tranche of Incremental Term Loans (calculated as described above) relating exceed the relevant interest rates applicable to the then existing Tranches of Term Loans by more than 0.50%; provided further, that, at no time shall the provisions of this Section 1.15 be construed to result in any decrease in any interest rate applicable to any then existing Tranche of Term Loans (including after giving effect to any prior increases in interest rates applicable thereto pursuant to the preceding provisions of this Section 1.15), (viii) the proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 7.05(a), (ix) each Incremental Term Loan Commitment Agreement shall specifically designate, with the approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans) unless the requirements of Section 1.15(c) are satisfied), (x) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Documents, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans of the applicable Borrower secured by each such Security Agreement and guaranteed under each such Guaranty, and (xi) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitment Agreement as provided in Section 1.01(c) and such Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 1.15, the respective Incremental Term Loan Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Term Loan Commitment Agreement substantially in the form of Exhibit P (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date set forth in such Incremental Term Loan Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent), (x) all Incremental Term Loan Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Term Loan Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement, and at such time, (i) Schedule I shall be deemed modified to reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued at the Applicable Margin relating respective Incremental Term Loan Borrower’s expense, to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 1.05(d) (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 1.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, etc.), provided that, with the consent of the Administrative Agent, the parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Incremental Term Loans or to the effectiveness outstanding Tranche of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Tranche B Term Loans shall be adjusted or Tranche C Term Loans, in either case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, shall have the same Maturity Date and shall have the same Applicable Margin as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(frespective Tranche proportionately). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 1.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basisbasis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Lenders making new Incremental Term Loans add such Incremental Term Loans to ABR the then outstanding Borrowings of Eurodollar Loans reasonably required by of such Tranche, it is acknowledged that the Administrative Agent effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to effect outstanding Eurodollar Loans of such Tranche and which will end on the foregoinglast day of such Interest Period). If any In connection therewith, the respective Incremental Term Loan is Borrower may agree, in the respective Incremental Term Loan Commitment Agreement, to be allocated to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Eurodollar Loans during an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for on such Interest Period and the other economic consequences thereof shall basis as may be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of agreed by such Incremental Term Loans shall be ratably increased by Loan Borrower and the aggregate principal amount of such respective Incremental Term LoansLoan Lender or Incremental Term Loan Lenders.
Appears in 3 contracts
Samples: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc)
Incremental Term Loan Commitments. (a) The Lead Borrower mayshall have the right, by written notice to in consultation and coordination with the Administrative Agent (signed by a Responsible Officer as to all of the Borrower) matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time, request time that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrowers and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Lead Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 after the Closing Date and all Indebtedness incurred pursuant to Section 10.04(xxvii)(A) shall not exceed the sum of (x) $100,000,000 (the “Second Lien Fixed Dollar Incremental Amount”) less the aggregate amount of Indebtedness and commitments incurred under the First Lien Fixed Dollar Incremental Amount, plus (y) the sum of all voluntary prepayments of Term Loans, Refinancing Notes and Indebtedness incurred pursuant to Section 10.04(xxvii) that ranks pari passu with the Term Loans (limited, in an aggregate amount not the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to exceed $80,000,000 from one such Refinancing Notes or more Incremental Term Lenders other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) (which may include in each case other than with the proceeds of long-term Indebtedness (other than Indebtedness under the ABL Credit Agreement)) in each case prior to the date of incurrence of any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth Loan Commitments plus (iz) an unlimited amount so long as the Consolidated Senior Secured Net Leverage Ratio, determined on a Pro Forma Basis as of such date would not exceed 5.25 to 1.00; (vi) the amount proceeds of all Incremental Term Loans incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vii) each Incremental Term Loan Commitment Agreement shall specifically designate, with the approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofSection 2.15(c) are satisfied), (iiviii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrowers shall be Obligations of the Borrowers under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on which a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrowers, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit L (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued at the Applicable Margin relating Borrowers’ expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence [reserved]; and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to To the extent any the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of add such Incremental Term Loans shall be ratably increased by to the aggregate principal amount then outstanding Borrowings of LIBO Rate Term Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term LoansLoans having short Interest Periods i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Term Loans of such Tranche and which will end on the last day of such Interest Period). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 3 contracts
Samples: Second Lien Term Loan Credit Agreement (PAE Inc), Second Lien Term Loan Credit Agreement (PAE Inc), Second Lien Term Loan Credit Agreement (PAE Inc)
Incremental Term Loan Commitments. (a) The Lead Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) may at any time and from time to time, time request that one or more Lenders (or one or more Eligible Transferees who will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrowers and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Amendment, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by Lead Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Amendment shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate principal amount of any Incremental Term Loans on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Term Loans incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vii) Lead Borrower shall specifically designate, in consultation with the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in an aggregate amount the applicable Incremental Term Loan Amendment, (viii) if to be incurred as a new Tranche of not Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than $10,000,000 the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity (in each case of the foregoing clauses (a) and in integral multiples (b), excluding for this purpose, interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the requirements of $1,000,000 in excess thereofthis clause (I)), (iiII) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Amendment; provided, however, that if the Effective Yield for any such Incremental Term Loans incurred prior the date that is six (6) months after the First Restatement Effective Date, exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.75% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrowers shall be Obligations of the Borrowers under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on which a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Amendment as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrowers, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such Term Loan Amendment (which shall not require the consent of any other documentation as Lender), with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, Loan Amendment shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Amendment, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued at the Applicable Margin relating Borrowers’ expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Amendment shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Amendment shall have the same Borrowers, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. The Borrower agrees To the extent the provisions of the preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Lenders making new Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of add such Incremental Term Loans to the then outstanding Borrowings of Term SOFR Term Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Term SOFR Term Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be ratably increased permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the aggregate principal amount Administrative Agent of Term SOFR in such Incremental Term Loanscircumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 3 contracts
Samples: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp), First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp), First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Incremental Term Loan Commitments. (a) The Each Borrower mayshall have the right, by written notice to in consultation and coordination with the Administrative Agent (signed by a Responsible Officer but without requiring the consent of any of the Borrower) Lenders, to request, at any time and from time to timetime prior to the then latest Maturity Date, request that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan CommitmentsCommitments to such Borrower and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the respective Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Commitment Agreement, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request, (ii) each Tranche of Incremental Term Loan Commitments shall be made available to a single Incremental Term Loan Borrower and shall be denominated in Dollars, (iii) the amount of the each Tranche of Incremental Term Loan Commitments being requested (which shall be in an a minimum aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof)25,000,000, (iiiv) the date on which such aggregate amount of all Incremental Term Loan Commitments are requested provided pursuant to become effective (this Section 1.14 shall not exceed the “Increased Amount Date”), (iii) whether such Maximum Incremental Term Loan Commitments are to be Commitment Amount, (v) the up-front fees and, if applicable, any unutilized commitment fees and/or other fees payable in respect of each Incremental Term Loan Commitments or commitments Commitment shall be separately agreed to make term loans with pricing and/or amortization terms different from by the respective Incremental Term Loans (“Other Term Loans”).
(b) The Loan Borrower and each Incremental Term Loan Lender shall execute (and deliver with all such fees to be disclosed in writing by the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the respective Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory Borrower to the Administrative Agent), (iivi) the final maturity date each Tranche of any Other Incremental Term Loans shall be have (I) (x) an Incremental Term Loan Maturity Date of no earlier than the then latest Maturity DateDate as then in effect, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (ivy) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of any Other Term then outstanding Loans shall be no shorter than with the remaining longest Weighted Average Life to Maturity and (II) an “interest rate” or “interest rates” applicable to such Tranche of the Incremental Term Loans. If the Applicable Margin Loans (which, for such purposes of this sentence only, shall be determined by the Administrative Agent and deemed to include all upfront or similar fees or original issue discount (amortized over the life of such Incremental Term Loans) payable to all Lenders providing such Incremental Term Loans, as applicable) relating to but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Tranche of Incremental Term Loan Commitment exceeds Loans) that may (at such time or from time to time thereafter) exceed the Applicable Margin relating “interest rates” applicable to the Term Loans; provided that, in the event that the “interest rate” excess applicable to such Tranche of Incremental Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more shall at such time be greater than 0.250.50%, the Applicable Margin relating to for the Tranche B-2 Term Loans, the Tranche C-2 Term Loans and each other then existing Tranche of Incremental Term Loans shall be adjusted to be equal increased by such amounts, and for such time periods, as are needed so that at no time shall the “interest rate” for the respective new Tranche of Incremental Term Loans (calculated as described above) exceed the relevant interest rates applicable to the Applicable Margin relating to such then existing Tranches of Term Loans by more than 0.50%, (vii) the proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 7.05(a), (viii) each Incremental Term Loan Commitment minus 0.25%.
(c) Each Agreement shall specifically designate, with the approval of the parties hereto hereby agrees thatAdministrative Agent, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms Tranche of the Incremental Term Loan Commitments evidenced thereby as being provided for in Section 9.02(f). Any such deemed amendment thereunder (which Tranche may be memorialized in writing by a new Tranche (i.e., not the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no same as any existing Tranche of Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such dateor other Term Loans) or an increase in a previously established Tranche), the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (iix) all Incremental Term Loans (and all interest, fees and other than Other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Documents, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans of the applicable Borrower secured by each such Security Agreement and guaranteed under each such Guaranty, and (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term LoansLoan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitment Agreement as provided in Section 1.01(c) and such Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 1.14, the applicable Incremental Term Loan Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Term Loan Commitment Agreement substantially in the form of additional Term LoansExhibit I (appropriately completed), when originally made, are included in each Borrowing with the effectiveness of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is Commitment provided therein to be allocated to an existing Interest Period for a LIBO Rate Loan, then occur on the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as date set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans Loan Commitment Agreement, which date in any event shall be ratably increased by no earlier than the aggregate principal amount of such date on which all Incremental Term LoansLoan Commitment Requirements are satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc)
Incremental Term Loan Commitments. Each Amendment No. 5 Incremental Term Loan Lender party hereto hereby agrees to commit to provide its Amendment No. 5 Incremental Term Loan Commitment as set forth on Schedule A annexed hereto, on the terms and subject to the conditions set forth in this Agreement. The aggregate principal amount of the Amendment No. 5 Incremental Term Loan Commitments as of the date hereof is $675,000,000. Each Amendment No. 5 Incremental Term Loan Lender (ai) The Borrower mayconfirms that it has received a copy of the Credit Agreement and the other Credit Documents and the schedules and exhibits attached thereto, by written notice together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent, any Letter of Credit Issuer or any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked DepositsCollateral Agent, as the case may be, immediately prior to by the effectiveness terms thereof, together with such powers as are reasonably incidental thereto; (iv) agrees that it will perform in accordance with their terms all of the applicable obligations which by the terms of the Credit Agreement are required to be performed by it as an Amendment No. 5 Incremental Assumption Term Loan Lender and a Lender; and (v) requests the Administrative Agent to execute this Agreement by more than 0.25%in accordance with Section 2.14(a) of the Credit Agreement. The Borrower, the Applicable Margin relating Administrative Agent and each Amendment No. 5 Incremental Term Loan Lender hereby agree that the Credit Agreement will be amended to provide for the Amendment No. 5 Incremental Term Loans shall be adjusted Loan Commitments as set forth in this Agreement upon the satisfaction (or waiver) by the Amendment No. 5 Incremental Term Loan Lenders and the Administrative Agent of the Effective Date Conditions (as defined below). Each Amendment No. 5 Incremental Term Loan Lender hereby agrees to be equal to the Applicable Margin relating to such provide its Amendment No. 5 Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) following terms and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.conditions:
Appears in 2 contracts
Samples: Joinder Agreement and Amendment No. 5 (BrightSpring Health Services, Inc.), Joinder Agreement and Amendment No. 5 (BrightSpring Health Services, Inc.)
Incremental Term Loan Commitments. (a) The Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) may at any time and from time to time, time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide Incremental Term Loan CommitmentsCommitments to Borrower and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Amendment, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Amendment shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) other than with respect to any Incremental Term Loans established pursuant to Section 2.15(d), the aggregate principal amount of any Incremental Term Loans on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Term Loans incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Term Loan Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that (x) Extendable Bridge Loans and (y) Incremental Term Loan Commitments and Incremental Term Loans in an aggregate principal amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof)of the then-available amount under the Inside Maturity Basket, in each case, may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (iiII) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan incurred on or prior to the date that is twenty-four months after the Closing Date, as applicable, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on which such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”) and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under the Guaranty Agreement, on a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Term Loans or be guaranteed by any guarantors that are not Credit Parties, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Amendment as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such Term Loan Amendment (which shall not require the consent of any other documentation as Lender), with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, Loan Amendment shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Amendment, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Notes will be issued at Borrower’s expense to such Incremental Term Loan Lender, to be in conformity with the Applicable Margin relating requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such each Incremental Term Loan Commitment minus 0.25%.
(c) Each of Amendment shall constitute a new Tranche, which shall be separate and distinct from the parties hereto hereby agrees existing Tranches pursuant to this Agreement; provided that, upon with the effectiveness consent of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Term Loan Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Term Loan Amendment shall have the same Borrower, the same Maturity Date and furnished the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the other Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Term Loan Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Term Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Term Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Notwithstanding Subject to compliance with the foregoingother applicable requirements set forth in this Section 2.15, no any new Incremental Term Loan Commitment shall become effective may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under this Section 2.20 unless any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the date of such effectiveness, the conditions set forth in paragraphs (bsame terms) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, and
(ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application amount of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are does not Other Term Loans, exceed the scheduled amortization payments under Section 2.07(asum of (x) required to be made after the making principal amount of such Incremental the applicable Term Loans shall be ratably increased by effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the aggregate principal amount establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Ingram Micro Holding Corp), Term Loan Credit Agreement (Ingram Micro Holding Corp)
Incremental Term Loan Commitments. (a) The So long as no Default or Event of Default is then in existence, each Borrower mayshall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the date on which the Syndication Date has occurred, and prior to the date which is 12 months prior to the Initial B Term Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to such Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice such Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 2.15, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be made available to a single Incremental Term Loan Borrower and shall be denominated in U.S. Dollars or, if extended to the Canadian Borrower and it has so elected, Canadian Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least U.S. $25,000,000 (or, U.S. $5,000,000 in the case of Incremental Term Loan Commitments to the Canadian Borrower denominated in U.S. Dollars or CDN $5,000,000, in an the case of Incremental Term Loan Commitments to the Canadian Borrower denominated in Canadian Dollars), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 after the Amendment No. 1 Effective Date (taking the U.S. Dollar Equivalent of any Incremental Term Loan Commitment denominated in Canadian Dollars at the time of the borrowing thereof), when combined with the aggregate amount of all Incremental RL Commitments provided pursuant to Section 2.16 after the Amendment No. 1 Effective Date and the aggregate principal (face) amount of Permitted Junior Debt issued or incurred after the Amendment No. 1 Effective Date, shall not to exceed $80,000,000 from 150,000,000 (although, in no event shall the aggregate amount of Canadian Borrower Incremental Term Loans incurred after the Amendment No. 1 Effective Date and provided pursuant to this Section 2.15 exceed CDN $40,000,000 (or the U.S. Dollar Equivalent thereof rounded to the nearest $1,000,000 increment)); provided that the U.S. Borrower may incur additional Incremental Term Loans and/or obtain Incremental RL Commitments (a “Ratio-Based Incremental Facility”) so long as the Consolidated Senior Secured Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Calculation Period for which Section 9.01 Financials were required to have been delivered (or, if no Calculation Period has passed, as of the last four quarters ended), in each case, as if such Ratio-Based Incremental Facility (and Revolving Credit Loans in an amount equal to the full amount of any such Incremental RL Commitments) had been outstanding on the last day of such four-quarter period, shall not exceed 3.50 to 1.00, (vi) the proceeds of all Incremental Term Loans incurred by the U.S. Borrower shall be used for working capital and other general corporate purposes (including, without limitation, to finance one or more Incremental Term Lenders Permitted Acquisitions, to pay fees and expenses in connection therewith and/or to prepay then outstanding Revolving Loans (which may include any existing Lenderwith no corresponding reduction in Revolving Loan Commitments), (vii) willing to provide such the proceeds of all Incremental Term Loans incurred by the Canadian Borrower shall be used to finance one or more Permitted Acquisitions and to pay fees and expenses in their own discretion. Such notice connection therewith, (viii) each Incremental Term Loan Commitment Agreement shall set forth (i) specifically designate, with the amount approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofSection 2.15(c) are satisfied), (iiix) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the applicable Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of preceding clauses (vi) and (vii)) and mandatory repayment application provisions (which are governed by Section 5.02); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) an Initial Incremental Term Loan Maturity Date of no earlier than the then latest maturing Tranche of outstanding Term Loans and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided however, that if the Effective Yield for such Incremental Term Loans as of the date on which of incurrence of such Tranche of Incremental Term Loans exceeds the Effective Yield then applicable to any Tranche of then outstanding Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ than those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be agreed to by the Administrative Agent, (x) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by a given Incremental Term Loan Borrower shall be Obligations of such Incremental Term Loan Commitments are requested Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by each such Security Agreement and guaranteed under each such Guaranty and (xi) each Lender (including any Eligible Transferee who will become a Lender) agreeing to become effective (provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the “Increased Amount Date”)satisfaction of the relevant conditions set forth in this Agreement, (iii) whether make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are Commitment Agreement as provided in Section 2.01(c) and such Loans shall thereafter be deemed to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Incremental Term Loans (“Other Term Loans”)under such Tranche for all purposes of this Agreement and the other applicable Credit Documents.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the respective Incremental Term Loan Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit M (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such the respective Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other Term Loans shall be no earlier than agreed upon up-front or arrangement fees owing to the Maturity DateAdministrative Agent), (iiiy) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Incremental Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued at the Applicable Margin relating respective Incremental Term Loan Borrower’s expense, to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, etc.), provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, the same Maturity Date, the same Applicable Margins and the same currency denomination as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately;
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(c)) on a pro rata basis; and
(iv) Incremental Term Loans may not be added to an existing Tranche of Term Loans borrowed by the Canadian Borrower. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply Lenders making new Incremental Term Loans add such Incremental Term Loans to any conversion the then outstanding Borrowings of LIBO Rate Loans to ABR or B/A Discount Rate Loans reasonably required by of such Tranche, it is acknowledged that the Administrative Agent to effect the foregoing. If any thereof may result in such new Incremental Term Loan is to be allocated to Loans having short Interest Periods (i.e., an existing Interest Period for a that began during an Interest Period then applicable to outstanding LIBO Rate Loan, then Loans or B/A Discount Rate Loans of such Tranche and which will end on the interest rate thereon for last day of such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption AgreementPeriod). In additionconnection therewith, it is hereby agreed that, to the extent any the Incremental Term Loans are not Other to be so added to the then outstanding Borrowings of Term Loans of such Tranche which are maintained as LIBO Rate Loans or B/A Discount Rate Loans, the scheduled amortization payments under Section 2.07(a) required to be Lenders that have made after the making of such Incremental Term Loans shall be ratably increased entitled to receive from the relevant Borrower such amounts, as reasonably determined by the aggregate principal amount of such respective Lenders, to compensate them for funding the new Incremental Term LoansLoans of the respective Tranche during an existing Interest Period (rather than at the beginning of the respective Interest Period based upon rates then applicable thereto). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 2 contracts
Samples: Credit Agreement (Bway Parent Company, Inc.), Credit Agreement (Phoenix Container, Inc.)
Incremental Term Loan Commitments. (a) The Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, Commitments in an aggregate amount (excluding any Incremental Term Loan Commitments in respect of Refinancing Term Loans) not to exceed $80,000,000 the Incremental Term Loan Amount from one or more Incremental Term Lenders (Lenders, which may include any existing Lender) willing to provide such ; provided that each Incremental Term Loans in their own discretionLender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent to the extent such consent would be required for an assignment to such Lender pursuant to Section 11.06(b). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate minimum increments of $1.0 million and a minimum amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof5.0 million or such lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”)effective, and (iii) whether such Incremental Term Loan Commitments are commitments to be make additional Term Loan Commitments Loans or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such each Incremental Term Lender. Each Incremental Assumption Agreement Additional Credit Extension Amendment pursuant to this Section 2.12 shall specify the terms of the applicable Incremental Term LoansLoans to be made thereunder; provided that that, without the prior written consent of the Required Lenders, (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iiiii) the terms applicable weighted average life to each series of Other Term Loans shall not require any prepayment thereof in excess maturity of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the then already outstanding Loans, (iii) any Incremental Term Loans shall rank (A) pari passu in right of payment to the Loans and (B) with respect to security, pari passu with the Term Loans and (iv) the provisions with respect to payment of interest, original issue discount and upfront fees shall be as set forth in the applicable Additional Credit Extension Amendment; provided that if the Yield of any Incremental Term Loans (other than Refinancing Term Loans) exceeds the Yield of the Term Loans. If Loans by more than 50 basis points, then the Applicable Margin for the Term Loans shall be increased to the extent required so that the Yield of the Term Loans is equal to the Yield of such Incremental Term Loans minus 50 basis points and (v) all other terms (other than the amortization schedule, which, for purposes of this sentence onlysubject to clauses (i) and (ii) above, shall be deemed to include all upfront or similar fees or original issue discount payable to all determined by Borrower and the Lenders providing such Term Loans, as applicablethereunder) relating applicable to any Incremental Term Loan Commitment exceeds Loans shall either be substantially identical to the Applicable Margin relating terms applicable to the Term Loans or shall be reasonably satisfactory to the Credit-Linked DepositsAdministrative Agent. For the avoidance of doubt, no Lender shall have any obligation to provide any Incremental Term Loan. The Administrative Agent shall promptly notify each Lender as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption AgreementAdditional Credit Extension Amendment pursuant to this Section 2.12, this Agreement and the other Loan Documents shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments Commitment and the Incremental Term Loans evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties heretothereby.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 2.12 unless (i) on the date of such effectiveness, the conditions set forth representations and warranties of the Borrower and each other Loan Party contained in paragraphs (b) this Agreement and (c) of Section 4.02 the other Loan Documents shall be satisfied true in all material respects on such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, (ii) no Default or Event of Default shall have occurred or be continuing or would result therefrom, (iii) calculations shall have been made by the Borrower demonstrating that, on a Pro Forma Basis, the Borrower would be in compliance with the covenant contained in Section 7.15 as of the last day of the most recently ended Measurement Period,Consolidated Leverage Ratio (calculated to exclude the net cash proceeds from such Incremental Term Loan Commitment) for the Measurement Period most recently ended prior to the date of such effectiveness is no greater than 4.00 to 1.00, (iv) the Administrative Agent shall have received a (with sufficient copies for each of the Incremental Term Lenders) an officer’s certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, Borrower certifying as to compliance with preceding clauses (i) and (ii) and containing the Administrative Agent shall have received customary calculations (in reasonable detail) required by preceding clause (iii), together with (unless otherwise specified in the applicable Additional Credit Extension Amendment) legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required reasonably requested by the Administrative Agent, Agent and consistent with those delivered on the Closing Date under Section 4.01 4.01, (v) all fees and such additional customary documents and filings (including amendments expenses owing to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that or the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to connection with such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default Commitment shall have occurred been paid, (vi) the Additional Credit Extension Amendment and any other documents entered into in connection therewith shall be continuingreasonably satisfactory to the Administrative Agent.
(ed) Each of the parties hereto hereby agrees that the Administrative Agent may may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply This may be accomplished by requiring each outstanding LIBO Rate Borrowing to any be converted into a Base Rate Borrowing on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding LIBO Rate Loan on a pro rata basis. Any conversion of LIBO Rate Loans to ABR Base Rate Loans reasonably required by the Administrative Agent preceding sentence shall be subject to effect the foregoingSection 3.05. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate LoanBorrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption AgreementAdditional Credit Extension Amendment. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a2.05(a)(i) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 2 contracts
Samples: Credit Agreement (Container Store Group, Inc.), Credit Agreement (Container Store Group, Inc.)
Incremental Term Loan Commitments. (a) The Borrower Company may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to timeAgent, request Incremental Term Loan Commitments, Commitments in an aggregate amount not to exceed $80,000,000 the Incremental Facility Amount at such time, from one or more Incremental Term Lenders (which may include any existing Lender) Lender willing to provide such Incremental Term Loans the same, in their own discretion); provided that each such Person, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (acting reasonably). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples minimum increments of $1,000,000 in excess thereofand a minimum amount of $10,000,000 or equal to the remaining Incremental Facility Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the “Increased Amount Date”)date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower Company and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the terms of the Incremental Term Loans to be made thereunder.
(c) The scheduled amortization and maturity of any Incremental Term Loans shall be as set forth in the applicable Incremental Term LoansAssumption Agreement; provided that in no event shall (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other new Incremental Term Loans shall be no earlier than the Maturity Date, latest final maturity date of any then outstanding Class of Term Loans and (iiiii) the terms applicable weighted average life to each series maturity of Other any new Incremental Term Loans shall not require be less than the weighted average life to maturity of any prepayment thereof in excess then outstanding Class of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless 6.1.3 unless, (i) on the date no Event of such effectiveness, the conditions set forth in paragraphs (b) Default or Unmatured Event of Default exists or would result therefrom and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board certified copies of authorizing resolutions and other customary closing certificates and documentation as required by of the relevant Incremental Assumption Agreement and, to Board of Directors of the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to Company authorizing such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingCommitments.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 2 contracts
Samples: Credit Agreement (Regal Beloit Corp), Credit Agreement (Regal Beloit Corp)
Incremental Term Loan Commitments. (a) The Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) may at any time and from time to time, time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide Incremental Term Loan CommitmentsCommitments to Borrower and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Amendment, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Amendment shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) other than with respect to any Incremental Term Loans established pursuant to Section 2.15(d), the aggregate principal amount of any Incremental Term Loans on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Term Loans incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Term Loan Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that (x) Extendable Bridge Loans and (y) Incremental Term Loan Commitments and Incremental Term Loans in an aggregate principal amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof)of the then-available amount under the Inside Maturity Basket, in each case, may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (iiII) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan incurred on or prior to the date that is twenty-four months after the Closing Date, as applicable, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on which such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”) and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under the Guaranty Agreement, on a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Term Loans or be guaranteed by any guarantors that are not Credit Parties, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Amendment as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such Term Loan Amendment (which shall not require the consent of any other documentation as Lender), with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, Loan Amendment shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Amendment, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Notes will be issued at Borrower’s expense to such Incremental Term Loan Lender, to be in conformity with the Applicable Margin relating requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such each Incremental Term Loan Commitment minus 0.25%.
(c) Each of Amendment shall constitute a new Tranche, which shall be separate and distinct from the parties hereto hereby agrees existing Tranches pursuant to this Agreement; provided that, upon with the effectiveness consent of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Term Loan Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Term Loan Amendment shall have the same Borrower, the same Maturity Date and furnished the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the other Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Term Loan Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Term Benchmark Term Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO RateTerm Benchmark Term Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBOTerm SOFR Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Notwithstanding Subject to compliance with the foregoingother applicable requirements set forth in this Section 2.15, no any new Incremental Term Loan Commitment shall become effective may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under this Section 2.20 unless any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the date of such effectiveness, the conditions set forth in paragraphs (bsame terms) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, and
(ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application amount of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are does not Other Term Loans, exceed the scheduled amortization payments under Section 2.07(asum of (x) required to be made after the making principal amount of such Incremental the applicable Term Loans shall be ratably increased by effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the aggregate principal amount establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Ingram Micro Holding Corp), Term Loan Credit Agreement (Ingram Micro Holding Corp)
Incremental Term Loan Commitments. (a) The Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) may at any time and from time to time, time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide Incremental Term Loan CommitmentsCommitments to Borrower and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Amendment, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Amendment shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) other than with respect to any Incremental Term Loans established pursuant to Section 2.15(d), the aggregate principal amount of any Incremental Term Loans on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Term Loans incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Term Loan Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that (x) Extendable Bridge Loans and (y) Incremental Term Loan Commitments and Incremental Term Loans in an aggregate principal amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof)of the then-available amount under the Inside Maturity Basket, in each case, may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (iiII) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan incurred on or prior to the date that is twenty-four months after the Closing Date, as applicable, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on which such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”) and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under the Guaranty Agreement, on a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Term Loans or be guaranteed by any guarantors that are not Credit Parties, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Amendment as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such Term Loan Amendment (which shall not require the consent of any other documentation as Lender), with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, Loan Amendment shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Amendment, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Notes will be issued at Borrower’s expense to such Incremental Term Loan Lender, to be in conformity with the Applicable Margin relating requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such each Incremental Term Loan Commitment minus 0.25%.
(c) Each of Amendment shall constitute a new Tranche, which shall be separate and distinct from the parties hereto hereby agrees existing Tranches pursuant to this Agreement; provided that, upon with the effectiveness consent of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Term Loan Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Term Loan Amendment shall have the same Borrower, the same Maturity Date and furnished the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the other Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Term Loan Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of Term Benchmark Term Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Term Benchmark Term Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the Term SOFR Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Notwithstanding Subject to compliance with the foregoingother applicable requirements set forth in this Section 2.15, no any new Incremental Term Loan Commitment shall become effective may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under this Section 2.20 unless any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the date of such effectiveness, the conditions set forth in paragraphs (bsame terms) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, and
(ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application amount of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are does not Other Term Loans, exceed the scheduled amortization payments under Section 2.07(asum of (x) required to be made after the making principal amount of such Incremental the applicable Term Loans shall be ratably increased by effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the aggregate principal amount establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Ingram Micro Holding Corp), Term Loan Credit Agreement (Ingram Micro Holding Corp)
Incremental Term Loan Commitments. (a) The Borrower Company may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to timeAgent, request Incremental Term Loan Commitments, Commitments in an aggregate amount not to exceed $80,000,000 the Incremental Facility Amount at such time, from one or more Incremental Term Lenders (which may include any existing Lender) Lender willing to provide such Incremental Term Loans the same, in their own discretion); provided that each such Person, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (acting reasonably). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples minimum increments of $1,000,000 in excess thereofand a minimum amount of $10,000,000 or equal to the remaining Incremental Facility Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the “Increased Amount Date”)date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower Company and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the terms of the Incremental Term Loans to be made thereunder.
(c) The scheduled amortization and maturity of any Incremental Term Loans shall be as set forth in the applicable Incremental Term LoansAssumption Agreement; provided that in no event shall (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other new Incremental Term Loans shall be no earlier than the Maturity Date, latest final maturity date of any then outstanding Class of Term Loans and (iiiii) the terms applicable weighted average life to each series maturity of Other any new Incremental Term Loans shall not require be less than the weighted average life to maturity of any prepayment thereof in excess then outstanding Class of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless 6.1.3 unless, (i) on subject to the date Limited Condition Acquisition provisions in Section 1.3, no Event of such effectiveness, the conditions set forth in paragraphs (b) Default or Unmatured Event of Default exists or would result therefrom and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board certified copies of authorizing resolutions and other customary closing certificates and documentation as required by of the relevant Incremental Assumption Agreement and, to Board of Directors of the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to Company authorizing such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingCommitments.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 2 contracts
Samples: Credit Agreement (Regal Beloit Corp), Credit Agreement (Regal Beloit Corp)
Incremental Term Loan Commitments. (a) The Borrower One or more Borrowers may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 Commitments from one or more Incremental Term Lenders (Lenders, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided that each Incremental Term Lender) willing , if not already a Lender hereunder, to provide the extent such approval would be required pursuant to Section 9.04 if an assignment of the applicable Incremental Term Commitments were being made to such Incremental Term Loans in their own discretionLender, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the identity of the Borrower or Borrowers to which the Incremental Term Loan Commitments shall be provided, (ii) the amount of the Incremental Term Loan Commitments being requested, (iii) if the Incremental Term Loan Commitments are requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof)Alternative Currency, the applicable currency, (iiiv) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than five (5) Business Days nor more than 60 days after the “Increased Amount Date”)date of such notice, unless otherwise agreed to by the Administrative Agent) and (iiiv) whether such Incremental Term Loan Commitments are commitments to be Term Loan Commitments make additional Tranche A Loans of the same Class or commitments to make term loans of a different Class with pricing and/or amortization terms different from the Term Tranche A Loans (such loans, “Other Specified Incremental Term Loans” and, such commitments, “Specified Incremental Term Loan Commitments”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 2 contracts
Samples: Credit Agreement (Cbre Group, Inc.), Credit Agreement (Cbre Group, Inc.)
Incremental Term Loan Commitments. (a) The So long as no Event of Default is then in existence, the Borrower mayshall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 2.15, in an aggregate amount such Lender shall not be obligated to exceed $80,000,000 from one or more fund any Incremental Term Lenders Loans, (which may include ii) any existing Lender (including any Eligible Transferee who will become a Lender) willing to may so provide such an Incremental Term Loans Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in their own discretion. Such notice shall set forth U.S. Dollars, (iiv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 (and all Indebtedness incurred under Section 10.04(xvi)) after the Closing Date shall not exceed the Incremental Amount, (vi) each Incremental Term Loan Commitment Agreement shall specifically designate, with the approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofSection 2.15(c) are satisfied), (iivii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose and mandatory repayment application provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory repayments on a ratable basis with the Initial Term Loans and the other Tranches of Incremental Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of certain prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) an Initial Incremental Term Loan Maturity Date of no earlier than the then latest maturing Tranche of outstanding Term Loans and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that, until the second anniversary of the Closing Date, if the Effective Yield for such Incremental Term Loans as of the date of incurrence of such Tranche of Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be agreed to by the Administrative Agent and (viii) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on which a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty and each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective (the “Increased Amount Date”), (iii) whether such be Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from Loans under such Tranche for all purposes of this Agreement and the Term Loans (“Other Term Loans”)other applicable Credit Documents.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit I (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other Term Loans shall be no earlier than agreed upon upfront or arrangement fees owing to the Maturity DateAdministrative Agent), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued at the Applicable Margin relating Borrower’s expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof ( i.e., X-0, X-0, X-0, X-0, X-0, X-0, etc.), provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply Lenders making new Incremental Term Loans add such Incremental Term Loans to any conversion the then outstanding Borrowings of LIBO Rate Term Loans to ABR Loans reasonably required by of such Tranche, it is acknowledged that the Administrative Agent to effect the foregoing. If any thereof may result in such new Incremental Term Loan is to be allocated to Loans having short Interest Periods i.e., an existing Interest Period for a that began during an Interest Period then applicable to outstanding LIBO Rate Loan, then Term Loans of such Tranche and which will end on the interest rate thereon for last day of such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption AgreementPeriod). In additionconnection therewith, it is hereby agreed that, to the extent any the Incremental Term Loans are not Other to be so added to the then outstanding Borrowings of Term Loans of such Tranche which are maintained as LIBO Rate Term Loans, the scheduled amortization payments under Section 2.07(a) required to be Lenders that have made after the making of such Incremental Term Loans shall be ratably increased entitled to receive from the Borrower such amounts, as reasonably determined by the aggregate principal amount of such respective Lenders, to compensate them for funding the new Incremental Term LoansLoans of the respective Tranche during an existing Interest Period (rather than at the beginning of the respective Interest Period based upon rates then applicable thereto). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 2 contracts
Samples: Term Loan Credit Agreement, Term Loan Credit Agreement (OCI Partners LP)
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right to request that one or more Banks (and/or one or more other Persons which will become Banks as provided below) provide Incremental Term Loan Commitments and, subject to the terms and conditions contained in this Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Bank shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Borrower, and until such time, if any, as such Bank has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 1.15, such Bank shall not be obligated to fund any Incremental Term Loans, (ii) any Bank (or, in the circumstances contemplated by clause (viii) below, any other Person which will qualify as an aggregate amount not to exceed $80,000,000 from one or more Eligible Transferee) may so provide an Incremental Term Lenders Loan Commitment without the consent of any other Bank, (which may include any existing Lenderiii) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount each provision of the Incremental Term Loan Commitments being requested (which pursuant to this Section 1.15 on a given date shall be in an a minimum aggregate amount (for all Banks (including in the circumstances contemplated by clause (viii) below, Eligible Transferees who will become Banks)) of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof (provided that the initial provision of Incremental Term Loan Commitments shall be in a minimum aggregate amount of not less than at least $10,000,000 25,000,000 and in integral multiples of $1,000,000 in excess thereof), (iiiv) the date on which aggregate amount of all Incremental Term Loans permitted to be incurred pursuant to this Section 1.15 shall not exceed $50,000,000, (v) at the Borrower’s option, Incremental Term Loans may be (x) added to and become part of the existing Tranche of Initial Term Loans for all purposes hereunder (such Incremental Term Loan Commitments are requested to become effective Loans, “Same Tranche Incremental Term Loans”) or (the y) incurred as a separate Tranche of Term Loans (such Incremental Term Loans, “Increased Amount DateSeparate Tranche Incremental Term Loans”), (iiivi) whether if incurred as Separate Tranche Incremental Term Loans, such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Initial Term Loans; provided, however, that (I) the maturity and amortization of such Separate Tranche Incremental Term Loans or (y) may differ, so long as such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Separate Tranche Incremental Term Loans shall be have (a) an Incremental Term Loan Maturity Date of no earlier than the Term Loan Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans(b) and (iv) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity of any Other as then in effect for the Initial Term Loans shall be no shorter than and (II) the remaining Weighted Average Life to Maturity “interest rate” for such Separate Tranche Incremental Term Loans as of the Incremental Term Loans. If the Applicable Margin Loan Borrowing Date therefor (which, for such purposes of this sentence only, shall be determined by the Administrative Agent and deemed to include all upfront or similar fees or original issue discount (amortized over the life of such Separate Tranche Incremental Term Loans) payable to all Lenders Banks providing such Incremental Term Loans, as applicablebut exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Banks providing such Separate Tranche Incremental Term Loans) relating may exceed the “interest rate” then applicable to any the Initial Term Loans if the Applicable Margin for (1) the Initial Term Loans and (2) each then outstanding Separate Tranche Incremental Term Loans is (or are) increased to the Applicable Increased Term Loan Rate with respect thereto, (vii) each Incremental Term Loan Commitment exceeds Agreement shall specify whether the Applicable Margin relating to the respective Incremental Term Loans shall constitute Same Tranche Incremental Term Loans or Separate Tranche Incremental Term Loans (and, if Separate Tranche Incremental Term Loans, the Credit-Linked Depositsmaturity and amortization (if any) with respect thereto and interest rates and fees applicable thereto, (viii) if, after the Borrower has requested the then existing Banks (other than Defaulting Banks) to provide Incremental Term Loan Commitments pursuant to this Section 1.15, the Borrower has not received Incremental Term Loan Commitments in an aggregate amount equal to that amount of Incremental Term Loan Commitments which the Borrower desires to obtain pursuant to such request (as set forth in the case notice provided by the Borrower as provided below), then the Borrower may be, immediately prior request Incremental Term Loan Commitments from Persons reasonably acceptable to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be Administrative Agent which would qualify as Eligible Transferees hereunder in an aggregate amount equal to the Applicable Margin relating to such deficiency, provided that any such Incremental Term Loan Commitment minus 0.25%provided by any such Eligible Transferee which is not already a Bank shall be in a minimum amount (for such Eligible Transferee) of at least $1,000,000 and (ix) all actions taken by the Borrower pursuant to this Section 1.15 shall be done in coordination with the Administrative Agent.
(cb) Each In connection with any provision of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in pursuant to this Section 9.02(f). Any such deemed amendment may be memorialized in writing by 1.15, the Borrower, the Administrative Agent with the Borrower’s consent and each such Bank or other Eligible Transferee (not each, an “Incremental Term Loan Bank”) which agrees to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no provide an Incremental Term Loan Commitment shall become effective under this Section 2.20 unless execute and deliver to the Administrative Agent an Incremental Term Loan Commitment Agreement, with (ix) the effectiveness of such Incremental Term Loan Bank’s Incremental Term Loan Commitment to occur upon delivery by all of the parties thereto of such Incremental Term Loan Commitment Agreement to the Administrative Agent and (y) the incurrence of Incremental Term Loans pursuant thereto to occur on the date of such effectiveness, subject to (A) the payment of any fees required in connection therewith (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent) and (B) the satisfaction of the Incremental Term Loan Commitment Requirements and any other conditions precedent that may be set forth in paragraphs (b) and (c) such Incremental Term Loan Commitment Agreement as of Section 4.02 shall be satisfied and the respective Incremental Term Loan Borrowing Date. The Administrative Agent shall have received a certificate promptly notify each Bank as to that effect dated the effectiveness of each Incremental Term Loan Commitment Agreement, and at such date time (i) Schedule I shall be deemed modified to reflect the Incremental Term Loan Commitments of such Incremental Term Loan Banks and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required requested by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the any Incremental Term Loans are secured by Loan Bank, Term Notes will be issued at the Collateral ratably with (orBorrower’s expense, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and Bank, in conformity with the requirements of Section 1.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to by such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingBank.
(ec) Each of Incremental Term Loans incurred as Separate Tranche Incremental Term Loans shall constitute a new Tranche, which shall be separate and distinct from the parties hereto hereby agrees that the Administrative Agent may take any and all action as existing Tranches pursuant to this Agreement (with a designation which may be reasonably necessary made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, C-1, C-2, C-3, etc.). In connection with each incurrence of Same Tranche Incremental Term Loans pursuant to ensure that Section 1.01(d), the Banks and the Borrower hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) all Same Tranche Incremental Term Loans incurred on each Incremental Term Loan Borrowing Date shall be added to (other than Other Term Loansand thereafter be deemed to constitute a part of for all purposes, including as to the rate of interest applicable thereto) in the form of additional Term Loans, when originally made, are included in each existing Borrowing of outstanding Initial Term Loans on a pro rata basis. The Borrower agrees that basis as provided in clause (ii) below and (ii) in connection with each incurrence of Same Tranche Incremental Term Loans pursuant to Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by 1.01(d), the Administrative Agent shall (and is hereby authorized to) take all appropriate actions to effect the foregoing. If any ensure that all outstanding Same Tranche Incremental Term Loan is Loans are allocated to Borrowings on a pro rata basis for all Initial Term Loans, even though as a result thereof such new Same Tranche Incremental Term Loans (to the extent required to be allocated to an existing maintained as Eurodollar Loans) may effectively have a shorter Interest Period for a LIBO Rate Loanthan the then outstanding Borrowings of Initial Term Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In additionit is hereby agreed that, to the extent any the Same Tranche Incremental Term Loans are not Other to be so incurred or added to the then outstanding Borrowings of Initial Term Loans which are maintained as Eurodollar Loans, the scheduled amortization payments under Section 2.07(a) required to be Banks that have made after the making of such Same Tranche Incremental Term Loans shall be ratably increased entitled to receive from the Borrower such amounts, as reasonably determined by the aggregate principal amount of such respective Banks, to compensate them for funding the various Same Tranche Incremental Term LoansLoans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). All determinations by any Bank pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.”.
5. Section 3.01 of the Credit Agreement is hereby amended by (i) redesignating clause (e) of said Section as clause (f) of said Section, and (ii) inserting the following new clause (e) immediately following clause (d) of said Section:
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Consolidated Container Co LLC)
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right, by written notice to without requiring the Administrative Agent (signed by a Responsible Officer consent of any of the Borrower) Lenders, to request at any time and from time to time, request time that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrower and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Commitment Agreement, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 after the Closing Date, on the date of incurrence thereof, when taken together with the aggregate principal amount of Permitted Pari Passu Notes, Permitted Pari Passu Loans and Permitted Junior Debt incurred pursuant to Section 10.04(xxvii)(A)(1) on such date, shall not exceed (x) the then remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Term Loans incurred by the Borrower may be used for any purpose not prohibited under this Agreement, (vii) the Borrower, in consultation with the Administrative Agent, shall specifically designate in the Incremental Term Loan Commitment Agreement the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofSection 2.15(c) are satisfied), (iiviii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Commitment Agreement, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, except in the case of Extendable Bridge Loans, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for any such Incremental Term Loans incurred prior to the date that is six (6) months after the Closing Date exceeds the Effective Yield then applicable to any then outstanding Term B-23 Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Term B-23 Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” (the “MFN Pricing Test”) and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on which a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such (which shall not require the consent of any other documentation as Lender), with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued at the Applicable Margin relating Borrower’s expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees thatrespective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, upon and notwithstanding anything to the effectiveness of any contrary set forth in Section 2.09, such new Incremental Assumption Agreement, this Agreement Term Loans shall be amended added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (but only iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the extent) necessary to reflect then outstanding Borrowings of Term SOFR Term Loans of such Tranche, it is acknowledged that the existence and terms of the effect thereof may result in such new Incremental Term Loan Commitments evidenced thereby as provided for Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Term SOFR Term Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in Section 9.02(f)this Agreement. Any such deemed amendment may be memorialized in writing All determinations by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished of Term SOFR in such circumstances pursuant to the other immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Notwithstanding Subject to compliance with the foregoingother applicable requirements set forth in this Section 2.15, no any new Incremental Term Loan Commitment shall become effective under this Section 2.20 unless may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, same terms); and
(ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application amount of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are does not Other Term Loans, exceed the scheduled amortization payments under Section 2.07(asum of (x) required to be made after the making principal amount of such Incremental the applicable Term Loans shall be ratably increased by effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the aggregate principal amount establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The So long as the Incremental Loan Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the Borrower mayshall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Syndication Date and prior to the date which is 12 months prior to the B Term Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to the Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of and the Borrower) from time to time, request Borrower an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 2.14, in an aggregate amount such Lender shall not be obligated to exceed $80,000,000 from one or more fund any Incremental Term Lenders Loans, (which may include ii) any existing Lender (including any Eligible Transferee who will become a Lender) willing to may so provide such an Incremental Term Loans Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in their own discretion. Such notice shall set forth Dollars, (iiv) the amount of the each Tranche of Incremental Term Loan Commitments being requested (which shall be in an a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of not less than Incremental Term Loans (including Eligible Transferees who will become Lenders) of at least (I) $10,000,000 50,000,000 and in integral multiples of $1,000,000 5,000,000 in excess thereof, in the case of Incremental Term Loans to be made pursuant to a new Tranche of Incremental Term Loans, and (II) $25,000,000 and in integral multiples of $5,000,000 in excess thereof, in the case of Incremental Term Loans to be made pursuant to (and to constitute a part of) an existing Tranche of Incremental Term Loans or the outstanding Tranche of A Term Loans or B Term Loans as contemplated by the proviso in the first sentence of Section 2.14(c), (iiv) the date on which aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.14, when combined with the aggregate amount of all Incremental RL Commitments provided pursuant to Section 2.15, shall not exceed the Maximum Incremental Commitment Amount, (vi) the up-front fees and, if applicable, any unutilized commitment fees and/or other fees, payable to each Incremental Term Loan Lender in respect of each Incremental Term Loan Commitment shall be separately agreed to by the Borrower, the Administrative Agent and each such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”)Lender, (iiivii) whether such each Tranche of Incremental Term Loans (other than Incremental Term Loans to be made pursuant to (and to constitute a part of) the outstanding Tranche of A Term Loans) shall (I) have an Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment Maturity Date of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the B Term Loan Maturity Date, (iiiII) the terms applicable have a Weighted Average Life to each series Maturity of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) no less than the Weighted Average Life to Maturity of any Other as then in effect for the B Term Loans shall and (III) be no shorter than subject to the remaining Weighted Average Life to Maturity Applicable Margins as are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans, provided that if there are B Term Loans outstanding on the date of the incurrence of such Tranche of Incremental Term Loans. If Loans (immediately before giving effect thereto), the Applicable Margin Margins for such Tranche of Incremental Term Loans (which, for such purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount (amortized over the life of such Tranche of Incremental Term Loans) payable to all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans) determined as applicableof the initial funding date for such Tranche of Incremental Term Loans may not exceed the Applicable Margins then applicable to B Term Loans (determined on the same basis as provided in the preceding parenthetical) relating by more than 0.50% per annum, (viii) the proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 8.08(c), (ix) each Incremental Term Loan Commitment Agreement shall specifically designate the Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans or other Term Loans) unless the requirements of Section 2.14(c) are satisfied), (x) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the Pledge Agreement, and guaranteed under the Subsidiaries Guaranty, on a pari passu basis with all other Obligations secured by the Pledge Agreement and guaranteed under the Subsidiaries Guaranty, and (xi) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitment Agreement as provided in Section 2.01(d) and such Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.14, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Term Loan Commitment Agreement, with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date set forth in such Incremental Term Loan Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Loan Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.14 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Term Loan Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement, and at such time, (i) Schedule I shall be deemed modified to reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued, at the Applicable Margin relating Borrower’s expense, to such Incremental Term Loan Lender in conformity with the requirements of Section 2.05.
(c) Notwithstanding anything to the contrary contained above in this Section 2.14, the Incremental Term Loans Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, C-1, C-2, C-3, etc.), provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Incremental Term Loans or the outstanding Tranche of A Term Loans or B Term Loans, in either case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Maturity Date and shall have the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Term Loan Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basisbasis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Lenders making new Incremental Term Loans add such Incremental Term Loans to ABR the then outstanding Borrowings of Eurodollar Loans reasonably required by of such Tranche, it is acknowledged that the Administrative Agent to effect the foregoing. If any thereof may result in such new Incremental Term Loan is Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to be allocated outstanding Eurodollar Loans of such Tranche and which will end on the last day of such Interest Period). In connection therewith, the Borrower hereby agrees to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Eurodollar Loans during an existing Interest Period for a LIBO Rate Loan, then on such basis as may be agreed by the interest rate thereon for such Interest Period Borrower and the other economic consequences thereof shall respective Lender or Lenders as may be as set forth provided in the applicable Incremental Assumption Agreement. In addition, to the extent any respective Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansLoan Commitment Agreement.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The So long as no Default or Event of Default is then in existence, each Borrower mayshall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the date which is 12 months prior to the Tranche A Term Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to such Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice such Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 2.15, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be made available to a single Incremental Term Loan Borrower and shall be denominated in U.S. Dollars or, if extended to the Canadian Borrower, U.S. Dollars or Canadian Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least U.S.$25,000,000 (or, Cdn.$5,000,000, in an the case of Incremental Term Loan Commitments denominated in Canadian Dollars), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 (taking the U.S. Dollar Equivalent of any Incremental Term Loan Commitments denominated in Canadian Dollars) shall not to exceed $80,000,000 from one or more 250,000,000 (provided that at no time may the sum of (x) the aggregate amount of all Incremental Term Lenders Loan Commitments provided pursuant to this Section 2.15 (which may include taking the U.S. Dollar Equivalent of any existing LenderIncremental Term Loan Commitments denominated in Canadian Dollars) willing and (y) the aggregate principal amount of Additional Senior Subordinated Notes issued pursuant to provide Section 10.01(a)(xiii) and outstanding at such time exceed $400,000,000), (vi) the proceeds of all Incremental Term Loans in their own discretion. Such notice shall set forth be used only for the purposes permitted by Section 9.11(a), (ivii) each Incremental Term Loan Commitment Agreement shall specifically designate, with the amount approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof)Incremental Term Loans, (ii) the date on which such Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are requested to become effective (the “Increased Amount Date”satisfied), (iiiviii) whether if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization Loans shall have the same terms different from the as each other Tranche of Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver as in effect immediately prior to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms effectiveness of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans andLoan Agreement, except as to pricingcurrency (which is subject to the requirements of preceding clause (iii)), purpose (which is subject to the requirements of preceding clause (vi)) and mandatory repayment application provisions (which are governed by Section 5.02); provided, however, that (I) the maturity and amortization and final maturity dateof such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (xa) the same terms as the an Incremental Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date Loan Maturity Date of any Other Term Loans shall be no earlier than the Tranche C Term Loan Maturity Date (or, in the case of Incremental Term Loans denominated in Canadian Dollars, the Tranche A Term Loan Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (ivb) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity of any Other as then in effect for the Tranche C Term Loans shall be no shorter than (or, in the remaining Weighted Average Life to Maturity case of Incremental Term Loans denominated in Canadian Dollars, the Tranche A Term Loans) and (II) the "interest rate" for such Tranche of Incremental Term Loans as of the Incremental Term Loans. If the Applicable Margin Loan Borrowing Date therefor (which, for such purposes of this sentence only, shall be determined by the Administrative Agent and deemed to include all upfront or similar fees or original issue discount (amortized over the life of such Incremental Term Loans) payable to all Lenders providing such Incremental Term Loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Tranche of Incremental Term Loans) may exceed the "interest rate" then applicable to (a) the Tranche A Term Loans and each other Tranche of Canadian Dollar Denominated Incremental Term Loans, in the case of a new Tranche of Canadian Dollar Denominated Incremental Term Loans to be incurred by the Canadian Borrower, or (b) the Tranche B Term Loans, the Tranche C Term Loans and each other Tranche of Incremental Term Loans (other than Canadian Dollar Denominated Incremental Term Loans), in the case of a new Tranche of Incremental Term Loans denominated in U.S. Dollars (as applicablesuch "interest rate" shall have been determined by the Administrative Agent on the same basis provided in the immediately preceding parenthetical) relating if the Applicable Margin for (1) the Tranche A Term Loans and each other Tranche of Canadian Dollar Denominated Incremental Term Loans, in the case of a new Tranche of Canadian Dollar Denominated Incremental Term Loans to be incurred by the Canadian Borrower, or (b) the Tranche B Term Loans, the Tranche C Term Loans and each other Tranche of Incremental Term Loans (other than Canadian Dollar Denominated Incremental Term Loans), in the case of a new Tranche of Incremental Term Loans denominated in U.S. Dollars, is (or are) increased to the Applicable Increased Term Loan Rate for such Tranche of Incremental Term Loans, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by a given Incremental Term Loan Borrower shall be Obligations of such Incremental Term Loan Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by each such Security Agreement and guaranteed under each such Guaranty, (x) each Incremental TL Lender making Canadian Dollar Denominated Incremental Term Loans to the Canadian Borrower shall have delivered to the Canadian Borrower and the Administrative Agent such certificates, forms, documents or other evidence as may be applicable and determined by the Canadian Borrower, acting reasonably, to be reasonably satisfactory to establish that such Lender is a Canadian Resident on the date of the incurrence of such Canadian Dollar Denominated Incremental Term Loans (it being acknowledged that a representation by such Person that it is a Canadian Resident shall be deemed to be reasonably satisfactory evidence thereof if such representation is accompanied by an explanation of the basis for such status) and (xi) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitment Agreement as provided in Section 2.01(d) and such Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the respective Incremental Term Loan Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Loan Commitment (each, an "Incremental Term Loan Lender") shall execute and deliver to the Administrative Agent an Incremental Term Loan Commitment Agreement substantially in the form of Exhibit O (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of the respective Incremental Term Loan Commitment Agreement shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent), (y) all Incremental Term Loan Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement, and at such time, (i) Schedule I shall be deemed modified to reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued at the Applicable Margin relating respective Incremental Term Loan Borrower's expense, to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, etc.), provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement (but not in respect of a Tranche A Term Loan, a Tranche B Term Loan or a given Tranche of Canadian Borrower Incremental Term Loans) may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, the same Maturity Date, the same Applicable Margins and the same currency denomination as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender Loans under the respective holding Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(d)) on a pro rata basis. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Lenders making new Incremental Term Loans add such Incremental Term Loans to ABR the then outstanding Borrowings of Eurodollar Loans reasonably required by of such Tranche, it is acknowledged that the Administrative Agent to effect the foregoing. If any thereof may result in such new Incremental Term Loan is to be allocated to Loans having short Interest Periods (i.e., an existing Interest Period for a LIBO Rate Loanthat began during an Interest Period, then applicable to outstanding Eurodollar Loans of such Tranche and which will end on the interest rate thereon for last day of such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption AgreementPeriod). In additionconnection therewith, it is hereby agreed that, to the extent any the Incremental Term Loans are not Other to be so added to the then outstanding Borrowings of Term Loans of such Tranche which are maintained as Eurodollar Loans, the scheduled amortization payments under Section 2.07(a) required to be Lenders that have made after the making of such Incremental Term Loans shall be ratably increased entitled to receive from the U.S. Borrower such amounts, as reasonably determined by the aggregate principal amount of such respective Lenders, to compensate them for funding the new Incremental Term LoansLoans of the respective Tranche during an existing Interest Period (rather than at the beginning of the respective Interest Period based upon rates then applicable thereto). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower mayNew Holdings shall have the right, by written notice to in consultation and coordination with the Administrative Agent (signed by a Responsible Officer as to all of the Borrower) matters set forth below in this subsection 2.4, but without requiring the consent of any of the Lenders, to request at any time and from time to timetime that one or more Lenders (and/or one or more other Persons which are Eligible Assignees and which will become Lenders (it being understood that New Holdings shall have no obligation to seek commitments in respect of Incremental Term Loans from existing Lenders)) provide Incremental Term Loan Commitments to the Borrowers and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by New Holdings, (ii) any Lender (including any Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Transferees who will become Lenders) of at least $10,000,000 (or, if less, the remaining available amount), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this subsection 2.4 after the Effective Date and all Indebtedness incurred pursuant to subsection 8.2(h) shall not exceed at the time of incurrence thereof the sum of (x) $150,000,000, plus (y) the sum of all voluntary prepayments of Term Loans and Indebtedness incurred pursuant to subsection 8.2(h) that ranks pari passu with the Initial Term Loans (limited to the cash payment made by any Loan Party or Restricted Subsidiary therefor) (in each case other than any prepayment (1) of Incremental Term Loans to the extent such Incremental Term Loans were obtained pursuant to clause (z) below or of Indebtedness incurred pursuant to subsection 8.2(h) or (2) to the extent funded with the proceeds of long-term Indebtedness (other than Indebtedness under an ABL Facility)) in each case prior to the applicable date of incurrence of any such Incremental Term Loan Commitments, plus (z) an unlimited amount (a “Ratio-Based Incremental Facility”) so long as, in an aggregate amount not the case of this clause (z) only, (i) in the case of Indebtedness secured by Liens on the Collateral that rank pari passu with the Liens securing the Initial Term Loans, on a pro forma basis, the Consolidated First Lien Net Leverage Ratio is less than or equal to exceed $80,000,000 from one 3.75 to 1.00 as of the last day of the most recently ended Test Period and (ii) in the case of Indebtedness secured by Liens on the Collateral that ranks junior with to the Liens securing the Initial Term Loans, on a pro forma basis, the Consolidated Total Net Leverage Ratio is less than or more Incremental Term Lenders equal to 5.00 to 1.00 as of the last day of the most recently ended Test Period (which it being understood that the Borrowers may include any existing Lenderutilize amounts under clause (z) willing prior to provide such amounts under clause (x) or clause (y) and that amounts under both clauses may be used in a single transaction), (v[reserved], (vi) the proceeds of all Incremental Term Loans in their own discretion. Such notice incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vivii) each Incremental Term Loan Commitment Agreement shall set forth (i) specifically designate, with the amount approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofsubsection 2.4(c) are satisfied), (iivii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other then outstanding Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of the preceding clause (v)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by subsection 4.6; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a weighted average life to maturity of no less than the weighted average life to maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest weighted average life to maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin”; provided, further, (A) if any Incremental Term Loans, which are secured by a Lien on which the Collateral ranking pari passu with the Lien on the Collateral securing the Indebtedness hereunder, include a Term SOFR or ABR floor that is greater than the Term SOFR or ABR floor applicable to the existing Initial Term Loans, such differential between interest rate floors shall be included in the calculation of Effective Yield but only to the extent an increase in the Term SOFR or ABR floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder and (B) to the extent any increase in the Effective Yield on the existing Initial Term Loans is required pursuant to the immediately preceding proviso, such increase shall be effected first through an increase in the Term SOFR or ABR floor applicable to such existing Initial Term Loans in an amount equal to the amount of the differential indicated in the foregoing clause (A) with any remaining required increase effected pursuant to an increase the Applicable Margin to the extent required by the definition thereof, and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II) and clause (ix) below) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agentviii) [reserved], (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrowers shall be Obligations of the Borrowers under this Agreement and the other applicable Loan Documents and shall be secured by the Security Documents, and guaranteed under each relevant guarantee, on a pari passu or junior basis with all other Term Loans secured by the Security Documents and guaranteed under each such Collateral and Guarantee and Collateral Agreement and no Incremental Term Loans shall have any obligors, guarantors or collateral other than those applicable to the other Term Loans, (x) each Lender (including any Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in subsection 2. 12.1(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Loan Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this subsection 2.4, the Borrowers, the Administrative Agent and each such Lender or other Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit N (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this subsection 2.4 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 1.1A shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the addition of the Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Notes will be issued at the Applicable Margin relating Borrowers’ expense to such Incremental Term Loan Lender, to be in conformity with the requirements of subsection 4.2(e) (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this subsection 2.4, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrowers, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same amortization payment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each amortization payment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining amortization payment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately;
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated subsection 4.7, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to subsection 2.1(b)) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.; and
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right (in consultation and coordination with the Administrative Agent) to request, at any time after the Syndication Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to the Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent and the Borrower an Incremental Term Loan Commitment Agreement as provided in clause (signed by b) of this Section 2.14, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Eligible Transferee who will become a Responsible Officer Lender) may so provide an Incremental Term Loan Commitment without the consent of the Borrowerany other Lender, (iii) from time to time, request each Tranche of Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such and all Incremental Term Loans to be made pursuant thereto, shall be denominated in their own discretion. Such notice shall set forth Dollars, (iiv) the amount of the each Tranche of Incremental Term Loan Commitments (whether constituting a new Tranche of Incremental Term Loans or being requested added to (which and thereafter constituting a part of) a then outstanding Tranche of Term Loans) shall be in an a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of not less than Incremental Term Loans (including Eligible Transferees who will become Lenders) of at least $10,000,000 5,000,000 (or such lower amount as may be acceptable to the Administrative Agent) and in integral multiples of $1,000,000 in excess thereofthereof (or such other integral multiple as may be acceptable to the Administrative Agent), (iiv) the date on which aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.14 and the aggregate principal amount of all Incremental Term Loans to be made pursuant thereto shall not exceed the Maximum Incremental Term Loan Commitment Amount at such time, (vi) the upfront fees, original issue discount, and, if applicable, any unutilized commitment fees and/or other fees, payable to each Incremental Term Loan Lender in respect of each Incremental Term Loan Commitment shall be separately agreed to by the Borrower and each such Incremental Term Loan Commitments are requested Lender, (vii) except to become effective (the “Increased Amount Date”extent permitted by Section 2.14(c), each Tranche of Incremental Term Loans shall (iiiA) whether such have an Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment Maturity Date of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (iiiB) the terms applicable have a Weighted Average Life to each series Maturity of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) no less than the Weighted Average Life to Maturity of any Other as then in effect for the Term Loans shall and (C) be no shorter than subject to the remaining Weighted Average Life to Maturity Applicable Margins as are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of the Incremental Term Loans. If ; provided that, if the Applicable Margin Margins for such Tranche of Incremental Term Loans (which, for such purposes of this sentence only, shall be deemed to include all upfront up front or similar fees or original issue discount (amortized over the shorter of (x) the life of such Tranche of Incremental Term Loans and (y) four years) payable to all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans and any LIBO Rate floor or Base Rate floor applicable to such Incremental Term Loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans) determined as of the initial funding date for such Tranche of Incremental Term Loans exceeds the Applicable Margins (which, for such purposes only, shall be deemed to include all up-front or similar fees or original issue discount (amortized over four years) originally payable to all Lenders providing such the Term Loans, as applicable) relating to Loans or any Incremental Term Loan Commitment exceeds Loans theretofore incurred and any LIBO Rate floor or Base Rate floor applicable to the Applicable Margin Term Loans or such Incremental Term Loans) relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement and then outstanding by more than 0.250.50%, then the Applicable Margin Margins relating to the Term Loans and then outstanding shall be adjusted to be equal to the Applicable Margin Margins (determined as provided above) relating to such Tranche of Incremental Term Loans minus 0.50%, (viii) the proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 7.08(b), (ix) each Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to specifically designate the extent (but only to the extent) necessary to reflect the existence and terms Tranche or Tranches of the Incremental Term Loan Commitments evidenced thereby as being provided for in Section 9.02(f). Any such deemed amendment may thereunder (which Tranche shall be memorialized in writing by a new Tranche unless the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) requirements of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower2.14(c) are satisfied), (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (ix) all Incremental Term Loans (and all interest, fees and other than Other Term Loansamounts payable thereon) in shall be Obligations under this Agreement and the form of additional Term Loansother applicable Credit Documents and shall be secured by the Security Documents, when originally madeand guaranteed under the Guaranty, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required pari passu basis with all other Obligations secured by the Administrative Agent Security Documents and guaranteed under the Guaranty, and (xi) each Lender (including any Eligible Transferee who will become a Lender) agreeing to effect the foregoing. If any provide an Incremental Term Loan is to be allocated Commitment pursuant to an existing Interest Period for a LIBO Rate LoanIncremental Term Loan Commitment Agreement shall, then subject to the interest rate thereon for such Interest Period and satisfaction of the other economic consequences thereof shall be as relevant conditions set forth in the applicable Incremental Assumption this Agreement. In addition, to the extent any make Incremental Term Loans are not Other under the Tranche specified in such Incremental Term Loans, the scheduled amortization payments under Loan Commitment Agreement as provided in Section 2.07(a2.01(c) required to be made after the making of and such Incremental Term Loans shall thereafter be ratably increased by the aggregate principal amount of such deemed to be Incremental Term LoansLoans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.14, the Borrower, each other Credit Party, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Loan Commitment (each, an
Appears in 1 contract
Incremental Term Loan Commitments. (a) The So long as no Default or Event of Default then exists or would result therefrom, the Borrower mayshall, in consultation with the Lead Arranger and the Administrative Agent, have the right to request, on one or more occasions on and after the earlier of (i) the Syndication Date and (ii) 90 days following the Initial Borrowing Date but prior to the Incremental Term Loan Commitment Termination Date, that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Term Loan Commitments under any Tranche, other than under the A-1 Term Loan Tranche, the A-2 Term Loan Tranche, the A-3 Term Loan Tranche or the Revolving Loan Tranche, but including any new Tranche as designated in the respective Incremental Term Loan Commitment Agreement and, subject to the terms and conditions contained in this Agreement and the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto, it being understood and agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 1.14, such Lender shall not be obligated to fund any Incremental Term Loans;
(ii) any Lender (or, in the circumstances contemplated by clause (vii) below, any other Person which is an Eligible Transferee) may so provide an Incremental Term Loan Commitment without the consent of any other Lender;
(iii) each provision of Incremental Term Loan Commitments pursuant to this Section 1.14 on a given date shall be in a minimum aggregate amount not to exceed $80,000,000 from one or more Incremental Term (for all Lenders (which may include any existing Lenderincluding in the circumstances contemplated by clause (vii) willing to provide such below, Eligible Transferees who will become Lenders)) of at least $50,000,000;
(iv) the aggregate principal amount of all outstanding Incremental Term Loans in their own discretion. Such notice plus the aggregate amount of unutilized Incremental Term Loan Commitments shall not at any time exceed the remainder of (x) the Permitted Incremental Debt Amount less (y) the aggregate principal amount of Indebtedness outstanding at such time pursuant to Section 9.04(viii);
(v) each Incremental Term Loan Commitment Agreement shall specifically set forth the Tranche or Tranches (iincluding any new Tranche thereunder) the amount of the Incremental Term Loan Commitments being provided thereunder;
(vi) each Lender agreeing to provide an Incremental Term Loan Commitment shall make Incremental Term Loans under the Tranche of Term Loans specified in the relevant Incremental Term Loan Commitment Agreement pursuant to Section 1.01(d) and such Loans shall thereafter be deemed to be Term Loans under such Tranche for all purposes of this Agreement and the other Credit Documents;
(vii) if, within 7 Business Days after the Borrower has requested the then existing Lenders (which shall be other than Defaulting Lenders) to provide Incremental Term Loan Commitments pursuant to this Section 1.14 the Borrower has not received Incremental Term Loan Commitments in an aggregate amount equal to that amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which such Incremental Term Loan Commitments are requested which the Borrower desires to become effective obtain pursuant to such request (as set forth in the “Increased Amount Date”notice provided by the Borrower as provided below), then the Borrower may, with the consent of the Lead Arranger (iii) whether such which consent shall not be unreasonably withheld or delayed), request Incremental Term Loan Commitments from Persons which are Eligible Transferees hereunder in an aggregate amount equal to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from such deficiency;
(viii) in no event shall the maturity date for any Tranche of Incremental Term Loans be earlier than the B Maturity Date; and
(“Other Term Loans”)ix) all actions taken by the Borrower pursuant to this Section 1.14 shall be taken in coordination with the Administrative Agent.
(b) The Borrower At the time of any provision of Incremental Term Loan Commitments pursuant to this Section 1.14, (i) the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each an "Incremental Term Loan Lender") shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement substantially in the form of Exhibit C (appropriately completed), with the effectiveness of such Incremental Term Loan Lender's Incremental Term Loan Commitment to occur on the date set forth in such Incremental Term Loan Commitment Agreement, (ii) the Borrower and its Subsidiaries shall have delivered such other documentation amendments, modifications and/or supplements to the Security Documents as are necessary or in the reasonable opinion of the Administrative Agent, desirable to insure that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitments are secured by, and entitled to the benefits of, the Security Documents, (iii) the Administrative Agent shall reasonably specify have received evidence satisfactory to evidence it that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify Commitments are permitted by, and constitute "Senior Debt" or any similar term under the terms of 9.15% Senior Subordinated Notes Documents and the applicable Incremental Term Loans9-7/8% Senior Subordinated Note Documents; provided that and (iiv) the Other Term Loans Borrower shall rank pari passu deliver to the Administrative Agent an opinion or junior opinions, in right of payment form and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be substance reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating from counsel to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior Borrower reasonably satisfactory to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with and dated such date, covering such of the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions matters set forth in paragraphs (b) and (c) the opinions of Section 4.02 shall be satisfied and counsel delivered to the Administrative Agent shall have received a certificate on the Initial Borrowing Date pursuant to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation Section 5.03 as required by the relevant Incremental Assumption Agreement and, to the extent required may be reasonably requested by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) matters as the Administrative Agent may reasonably require request (including, without limitation, the matters described in immediately preceding clause (iii)). The Administrative Agent shall promptly notify each Lender as to assure that the effectiveness of each Incremental Term Loan Commitment Agreement, and (i) at such time Annex I shall be deemed modified to reflect the Incremental Term Loans are secured by Loan Commitments of such Incremental Term Loan Lenders under the Collateral ratably with relevant Tranche or Tranches and (or, ii) to the extent agreed requested by the applicable such Incremental Term Lenders in Loan Lenders, the applicable Incremental Assumption Agreementappropriate Notes will be issued, junior to) at the existing Term LoansBorrower's expense, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans Lenders, to be consistent with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the Incremental Term Loans made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to by such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingLenders.
(ec) Each In connection with each incurrence of Incremental Term Loans pursuant to Section 1.01(d) under a then existing Tranche of Term Loans, the parties hereto Lenders and the Borrower hereby agrees that agree that, notwithstanding anything to the contrary contained in this Agreement, the Borrower and the Administrative Agent may take any and all action such actions as may be reasonably necessary to ensure that (i) all Incremental Lenders with outstanding Term Loans (other than Other Term Loans) in under the form of additional Term Loans, when originally made, are included relevant Tranche continue to participate in each Borrowing of outstanding Term Loans under such Tranche (after giving effect to the incurrence of any such Incremental Term Loans pursuant to Section 1.01(d)) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate , including by adding such Incremental Term Loans to ABR be so incurred to the then outstanding Borrowings of Term Loans reasonably required by the Administrative Agent to effect the foregoing. If any on a pro rata basis even though as a result thereof such new Incremental Term Loan is (to the extent required to be allocated to an existing maintained as Eurodollar Loans), may effectively have a shorter Interest Period for a LIBO Rate Loan, than the then the interest rate thereon for outstanding Borrowings of Term Loans under such Interest Period Tranche and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, it is hereby agreed that (x) to the extent any then outstanding Borrowings of Term Loans that are maintained as Eurodollar Loans are affected as a result thereof, any costs of the type described in Section 1.11 incurred by such Lenders in connection therewith shall be for the account of the Borrower or (y) to the extent the Incremental Term Loans to be so incurred are not Other added to the then outstanding Borrowings of Term Loans which are maintained as Eurodollar Loans, the scheduled amortization payments under Section 2.07(a) required to be Lenders that have made after the making of such additional Incremental Term Loans shall be ratably increased by entitled to receive an effective interest rate on such additional Incremental Term Loans as is equal to the aggregate principal amount Eurodollar Rate as in effect two Business Days prior to the incurrence of such additional Incremental Term LoansLoans plus the then Applicable Margin for such Tranche of Term Loans until the end of the respective Interest Period or Interest Periods with respect thereto.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The So long as the Syndication Date has occurred and no Default or Event of Default then exists or would result therefrom, the Parent Borrower mayhave the right to request on one or more occasions on and after the Closing Date that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Term Loan Commitments under any existing Tranche or one or more additional Tranches and, subject to the terms and conditions contained in this Agreement, make Incremental Term Loans pursuant thereto, it being understood and agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Parent Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request and Parent Borrower an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this subsection 2.5, such Lender shall not be obligated to fund any Incremental Term Loans,
(ii) any Lender (or, in the circumstances contemplated by clause (vii) below, any other Person) may so provide an Incremental Term Loan Commitment without the consent of any other Lender,
(iii) each provision of Incremental Term Loan Commitments pursuant to this subsection 2.5 on a given date shall be in a minimum aggregate amount (for all Lenders (including in the circumstances contemplated by clause (vii) below, any other Person who will become Lenders)) of at least $25,000,000,
(iv) the aggregate amount of all Incremental Term Loan Commitments permitted to be provided pursuant to this subsection 2.5 shall not to exceed $80,000,000 from one or more 300,000,000,
(v) the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice Loan Commitment Agreement shall specifically set forth (i) the amount Tranche of the Incremental Term Loan Commitments being provided thereunder,
(vi) each Lender agreeing to provide an Incremental Term Loan Commitment under a Tranche, shall make Incremental Term Loans under the Tranche specified in the relevant Incremental Term Loan Commitment Agreement pursuant to subsection 2.1(b) and such Incremental Term Loans shall thereafter be deemed to be Term Loans under the relevant Tranche for all purposes of this Agreement and the other Loan Documents,
(vii) if, within 5 Business Days after the Parent Borrower has requested (which shall be the then existing Lenders to provide Incremental Term Loan Commitments pursuant to this subsection 2.5 the Parent Borrower has not received Incremental Term Loan Commitments in an aggregate amount equal to that amount of Incremental Term Loan Commitments which the Parent Borrower desires to obtain pursuant to such request (as set forth in the notice provided by the Parent Borrower as provided below the Administrative Agent, in consultation with the Parent Borrower, will use its reasonable best efforts to arrange for other Persons to become Lenders or to provide Incremental Term Loan Commitments, as applicable, hereunder and to issue commitments in an amount equal to the amount of the increase in the Incremental Term Loan Commitments requested by the Parent Borrower, as the case may be, and not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereofaccepted by the existing Lenders (each Person issuing, or Lender increasing, its Commitment, an "Additional Commitment Lender"), provided, however, any Additional Commitment Lender which is not an existing Lender shall be subject to the approval of the Administrative Agent and the Parent Borrower,
(iiviii) no Incremental Term Loan may be incurred unless on a pro forma basis after giving effect to the date on which incurrence of such Incremental Term Loan Commitments are requested and the application of the proceeds thereof the consolidated Total Leverage Ratio for the then most recently ended period of four consecutive fiscal quarters is not greater than 4.00:1.00 and the Consolidated Secured Leverage Ratio for the then most recently ended period of four consecutive fiscal quarters is not greater than 3.00:1.00,
(ix) if Incremental Term Loans incurred pursuant to become effective (the “Increased Amount Date”), (iii) whether such an Incremental Term Loan Commitments Commitment are to be under a New Tranche, the Applicable Margin for such New Tranche of Incremental Term Loans, the Incremental Term Loan Commitments or commitments Maturity Date for such New Tranche and the scheduled repayments for such New Tranche and the other terms of such New Tranche shall be set forth in the related Incremental Term Loan Commitment Agreement and shall be reasonably satisfactory in all respects to make term loans the Administrative Agent,
(x) all actions taken by the Parent Borrower pursuant to this subsection 2.5 shall be done in consultation with pricing and/or amortization terms different from the Administrative Agent, and
(xi) no Tranche of Incremental Term Loans (“Other shall have a Maturity Date prior to the Initial Term Loans”)Loan Maturity Date.
(b) The Borrower At the time of any provision of Incremental Term Loan Commitments pursuant to this subsection 2.5,
(i) the Parent Borrower, the Administrative Agent and each such Lender or other Person (each an "Incremental Lender") which agrees to provide an Incremental Term Lender Loan Commitment shall execute and deliver to the Administrative Agent and the Parent Borrower an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment Agreement substantially in the form of Exhibit B hereto (appropriately completed) pursuant to which the respective Incremental Term Loan Commitments shall be provided, with the effectiveness of such Incremental Term Lender. Each 's Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as Commitment to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made occur on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to date set forth in such Incremental Term Loan Commitment minus 0.25%.
(c) Each of Agreement and the parties hereto hereby agrees that, upon the effectiveness payment of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for fees required in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.connection therewith,
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required evidence reasonably satisfactory to it that the additional obligations to be incurred pursuant to the Incremental Term Loans are permitted by the relevant Incremental Assumption Agreement andterms of the outstanding Indebtedness of Holdings and its Subsidiaries including, without limitation, the ABL Loan Documents and the Senior Note Documents,
(iii) to the extent required requested by the Administrative Agent, consistent the Parent Borrower, shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Parent Borrower reasonably satisfactory to the Administrative Agent and dated such date,
(iv) an Incremental Term Loan Note (to the extent requested) will be issued at the Borrowers' expense, to each such Incremental Lender, to be in conformity with those requirements of subsection 2.2(b) (with appropriate modification) to the extent necessary to reflect Incremental Term Loans of such Incremental Lender, and
(v) the applicable Borrowers and Incremental Lender shall have delivered on the Closing Date under Section 4.01 and such additional customary other instruments, documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) agreements as the Administrative Agent may reasonably require have requested in order to assure that effectuate the documentation of the foregoing. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement.
(c) In connection with each incurrence of Incremental Term Loans are secured by the Collateral ratably with (or, pursuant to subsection 2.1(b) that have been specified pursuant to the extent agreed by the applicable respective Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the Loan Commitment Agreement as being part of an existing Tranche of Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments the Lenders and the Loans Borrowers hereby agree that, notwithstanding anything to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.contrary contained in this Agreement:
(ei) Each of the parties hereto hereby agrees that Borrowers and the Administrative Agent may take any and all action such actions as may be reasonably necessary to ensure that (i) all Incremental Lenders with outstanding Term Loans (other than Other Term Loans) in under the form of additional Term Loans, when originally made, are included relevant Tranche continue to participate in each Borrowing of outstanding Term Loans under such Tranche (after giving effect to the incurrence of Incremental Term Loans pursuant to subsection 2.1(b) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate , including by adding the Incremental Term Loans to ABR be so incurred to the then outstanding Borrowings of Term Loans reasonably required by the Administrative Agent to effect the foregoing. If any on a pro rata basis even though as a result thereof such new Incremental Term Loan is (to the extent required to be allocated to an existing maintained as Eurocurrency Loans), may effectively have a shorter Interest Period for a LIBO Rate Loan, than the then the interest rate thereon for outstanding Borrowings of Term Loans under such Interest Period Tranche and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, it is hereby agreed that (x) to the extent any then outstanding Borrowings of Term Loans that are maintained as Eurocurrency Loans are affected as a result thereof, any costs of the type described in subsection 3.12 incurred by such Lenders in connection therewith shall be for the account of the Borrowers or (y) to the extent the Incremental Term Loans to be so incurred are not Other added to the then outstanding Borrowings of Term Loans which are maintained as Eurocurrency Loans, the scheduled amortization payments under Section 2.07(a) required to be Lenders that have made after the making of such additional Incremental Term Loans shall be ratably increased by entitled to receive an effective interest rate on such additional Incremental Term Loans as is equal to the aggregate principal Eurocurrency Rate as in effect two Business Days prior to the incurrence of such additional Incremental Term Loans plus the then Applicable Margin for such Tranche of Term Loans until the end of the respective Interest Period or Interest Periods with respect thereto,
(ii) the Incremental Term Loans to be made pursuant to such Incremental Term Loan Commitment Agreement shall have the same Maturity Date and the same Weighted Average Life to Maturity as the Tranche of Term Loans to which the new Incremental Term Loans are being added, and shall bear interest at the same rates (i.e., have the same Applicable Margins) applicable to such Tranche, and
(iii) the new Incremental Term Loans shall have the same amortization dates (if any) as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of principal to be repaid on each such amortization date applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount to be repaid on each then remaining amortization date of the respective Tranche proportionately.
(d) Each Lender hereby covenants and agrees to enter into any technical amendments necessary in connection with the provision of Incremental Term Loans hereunder in accordance with the provisions of this subsection 2.5 and the respective Incremental Term Loan Commitment Agreement, provided that such amendment shall be strictly limited to the provisions necessary to incorporate the appropriate provisions for such Incremental Term Loans.
Appears in 1 contract
Samples: Second Lien Term Loan Credit Agreement (RSC Holdings Inc.)
Incremental Term Loan Commitments. (a) The So long as no Default or Event of Default then exists or would result therefrom, the Borrower mayshall, in consultation with the Administrative Agent, have the right to request on one or more occasions on and after the Restatement Effective Date and prior to the Incremental Term Loan Commitment Termination Date that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Term Loan Commitments and, subject to the terms and conditions contained in this Agreement and the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any request by written notice the Borrower, and until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 1.14 and (y) the other conditions set forth in Section 1.14(b) shall have been satisfied, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (or any other Person which will qualify as an Eligible Transferee) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each provision of Incremental Term Loan Commitments pursuant to this Section 1.14 for any Lender shall be in an amount of at least $2,500,000, (iv) the aggregate amount not to exceed $80,000,000 from one or more of all Incremental Term Lenders (which may include any existing Lender) willing Loan Commitments permitted to provide such be provided pursuant to this Section 1.14 and the aggregate principal amount of all Incremental Term Loans permitted to be made pursuant to Sections 1.01(c) shall not, in their own discretion. Such notice either case, exceed $30,000,000, (v) the fees payable to any Lender providing an Incremental Commitment shall be as set forth in the relevant Incremental Term Loan Commitment Agreement, (ivi) the amount Applicable Margins, Incremental Term Loan Maturity Date and Incremental Scheduled Repayments in respect of the Incremental Term Loan Commitments being requested (which and Incremental Term Loans shall be as set forth in an aggregate amount of not less than $10,000,000 this Agreement, and (vii) all actions taken by the Borrower pursuant to this Section 1.14 shall be done in integral multiples of $1,000,000 in excess thereof), (ii) coordination with the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)Administrative Agent.
(b) The Borrower At the time of any provision of Incremental Term Loan Commitments pursuant to this Section 1.14, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee (each an "Incremental Term Lender Loan Lender") which agrees to provide an Incremental Term Loan Commitment shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and substantially in the form of Exhibit K (appropriately completed), with the effectiveness of such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Lender's Incremental Term Loan Commitment to occur upon delivery of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each Agreement to the Administrative Agent and the payment of the parties hereto hereby agrees that, upon any fees required in connection therewith. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any each Incremental Assumption Term Loan Commitment Agreement, this Agreement and at such time Annex I shall be amended to the extent (but only to the extent) necessary deemed modified to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingLenders.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The So long as no Default or Event of Default then exists or would result therefrom, Borrower mayshall have the right to request on one or more occasions prior to the Term Loan Maturity Date that one or more Lenders and/or one or more other Eligible Assignees provide Incremental Term Loan Commitments as designated in the Incremental Term Loan Commitment Agreement in accordance with the provisions of this Agreement and, subject to the terms and conditions contained in this Agreement and the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans, pursuant thereto, it being understood and agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent an Incremental Term Loan Commitment Agreement as provided in clause (signed b) of this Section 2.14, such Lender shall not be obligated to fund any Incremental Term Loans;
(ii) except as otherwise provided in clauses (vii) and (viii) below, any Lender or other Eligible Assignee may so provide an Incremental Term Loan Commitment without the consent of any other Lender;
(iii) each provision of Incremental Term Loan Commitments pursuant to this Section 2.14 on a given date pursuant to a particular Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount (for all Lenders and other Eligible Assignees who will become Lenders pursuant thereto) of $5,000,000;
(iv) the aggregate amount of all Incremental Term Loan Commitments permitted to be provided pursuant to this Section 2.14 shall not exceed $50,000,000;
(v) the Incremental Term Loans shall not have the benefit of any more favorable security interests or guarantees than the Term Loans;
(vi) all Incremental Term Loans to be incurred pursuant to Incremental Term Loan Commitments provided in response to a particular request for same made by Borrower in accordance with clause (b) of this Section 2.14 shall be incurred pursuant to Incremental Term Loan Commitments provided pursuant to a single Incremental Term Loan Commitment Agreement, which may be executed in counterparts;
(vii) unless both (I) the Required Lenders and (II) those Lenders holding (as outstanding Loans or existing Revolving Loan Commitments, as the case may be) (x) a majority of the aggregate principal amount of outstanding Term Loans having a Maturity Date after such proposed Maturity Date plus (y) if such proposed Maturity Date is to be prior to the Revolving Loan Maturity Date, a majority of the total Revolving Loan Commitment, expressly agree in writing, in no event shall the Maturity Date of the Incremental Term Loans to be provided pursuant to any Incremental Term Loan Commitment Agreement be earlier than the Maturity Date of any other tranche of Loans (or Revolving Loan Commitment) outstanding at the time such Incremental Term Loans are incurred;
(viii) unless both (I) the Required Lenders and (II) those Lenders holding a majority of the aggregate principal amount of outstanding Term Loans having a Weighted Average Life to Maturity which is longer than the Weighted Average Life to Maturity of the Incremental Term Loans to be made pursuant to the relevant Incremental Term Loan Commitments expressly agree in writing, in no event shall the Weighted Average Life to Maturity of the Incremental Term Loans to be provided pursuant to any Incremental Term Loan Commitment Agreement be less than the Weighted Average Life to Maturity of any other tranche of Term Loans outstanding at the time such Incremental Term Loans are incurred;
(ix) Holdings shall be in compliance with the Financial Performance Covenants (calculated on a Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) have been incurred and the proceeds thereof applied in a manner as certified to by a Responsible Officer of Borrower to the BorrowerAdministrative Agent) from time to at such time, ; and
(x) Borrower shall provide the Administrative Agent with notice of each request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of the for Incremental Term Loan Commitments being requested (which shall be in an aggregate amount pursuant to this Section 2.14 contemporaneously with the making of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which each such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)request.
(b) The Borrower At the time of any provision of Incremental Term Loan Commitments pursuant to this Section 2.14, (i) Borrower, and each Lender or other Eligible Assignee which agrees to provide an Incremental Term Lender Loan Commitment (each an “Incremental Term Loan Lender”) shall execute (which execution may be in counterparts) and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement (it being understood that a single Incremental Term Loan Commitment Agreement shall be executed and delivered by all Incremental Term Loan Lenders providing Incremental Term Loan Commitments in response to a particular request for same made by Borrower) substantially in the form of Exhibit M (appropriately completed and with such modifications as may be reasonably acceptable to the Administrative Agent and Borrower), with the effectiveness of the Incremental Term Loan Commitment(s) provided therein to occur on the date set forth in such Incremental Term Loan Commitment Agreement and the payment of any fees required in connection therewith; (ii) Holdings and the Subsidiaries shall have delivered such other documentation amendments, modifications and/or supplements to the Security Documents (if any) as are necessary or, in the reasonable opinion of the Administrative Agent, desirable to ensure that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitments are secured by, and entitled to the benefits of, the Security Documents; provided that the collateral and related security interests in respect of the Incremental Term Loans shall not be more favorable to the Incremental Term Loan Lenders than those in respect of the Term Loans; (iii) the Administrative Agent shall reasonably specify to evidence receive an acknowledgment from the Loan Parties that the Incremental Term Loan Commitment of Loans to be incurred pursuant to such Incremental Term Lender. Each Incremental Assumption Agreement shall specify Loan Commitments are entitled to the terms benefits of the applicable Guaranty and the Security Documents, together with resolutions executed by the Subsidiary Guarantors, stating that the Incremental Term LoansLoans to be incurred pursuant to such Incremental Term Loan Commitments are entitled to benefits of the Guaranty and the Security Documents; provided that and (iiv) if requested by the Other Term Loans Administrative Agent, Borrower shall rank pari passu deliver to the Administrative Agent an opinion or junior opinions, in right of payment form and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be substance reasonably satisfactory to the Administrative Agent, from counsel to Borrower reasonably satisfactory to the Administrative Agent (ii) the final maturity date of any Other Term Loans shall which may be no earlier than the Maturity Date, (iii) the terms applicable internal counsel to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term LoansBorrower) and (iv) dated such date, covering such matters as the Weighted Average Life Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to Maturity the effectiveness of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any each Incremental Term Loan Commitment exceeds Agreement, and shall deliver to each Lender a copy of same, and (i) at such time Schedule 2.01 shall be deemed modified to reflect the Applicable Margin relating Incremental Term Loan Commitments of the respective Incremental Term Loan Lenders and (ii) to the extent requested by such Incremental Term Loan Lenders, the appropriate Notes (each, an “Incremental Term Note”) will be issued, at Borrower’s expense, to such Incremental Term Loan Lenders, to be consistent with the requirements of Section 2.11(b) (with appropriate modifications, to the extent needed) to reflect the Incremental Term Loans made by such Incremental Term Loan Lenders or Lender, as the Credit-Linked Depositscase may be.
(c) Notwithstanding anything to the contrary contained above, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or Incremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness of existing Tranche pursuant to this Agreement, provided that the applicable parties to a given Incremental Assumption Term Loan Commitment Agreement by more than 0.25%may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, the Applicable Margin relating to existing Tranche of Term Loans, so long as the following requirements are satisfied:
(i) the Incremental Term Loans shall be adjusted to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended have the same maturity date and the same Weighted Average Life to Maturity as the extent (but only Tranche of Term Loans to which the extent) necessary to reflect the existence and terms of the new Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any Loans are being added, and shall bear interest at the same rates (i.e., have the same Applicable Rates) applicable to such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.Tranche; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent new Incremental Term Loans shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation the same amortization payment dates as required by the relevant Incremental Assumption Agreement and, then remain with respect to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and Term Loans to which such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by being added (with the Collateral ratably with (or, amount of each amortization payment applicable to the extent agreed by the applicable such new Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of same (on a proportionate basis) as is theretofore applicable to the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on which such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any new Incremental Term Loans are not Other Term Loansbeing added, thereby increasing the scheduled amount of each then remaining amortization payments under Section 2.07(a) required to be made after payment of the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loansproportionately).
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to timeeach, request an “Incremental Term Loan CommitmentsRequest”), in an aggregate amount not to exceed $80,000,000 from request one or more increases in the Term Loan Commitment (each, an “Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Commitment” and the term loans thereunder, each an “Incremental Term Loans Loan”) at any time; provided that no commitment of any Lender shall be increased without the consent of such Lender in their own discretionsuch Lender’s sole discretion and no Lender shall be required to participate in any Incremental Term Loan. Such notice Each Incremental Term Loan Request shall set forth (ix) the amount of the Incremental Term Loan Commitments Commitment being requested (which shall be in an aggregate a minimum amount of not less than $10,000,000 1,000,000 and in integral multiples of $1,000,000 500,000 in excess thereof), ) and (iiy) the date on which such Incremental Term Loan Commitments are is requested to become effective (which, unless otherwise agreed by Agent and the Lenders providing such Incremental Term Loan, shall not be less than six (6) days nor more than sixty (60) days after the date of any Incremental Term Loan Request (the “Increased Amount Incremental Effective Date”), (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms Upon delivery of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as Loan Request to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each shall be offered to all Lenders pro rata according to the respective outstanding principal amounts of the parties hereto hereby agrees that, upon Loans and Commitments held by each Lender (or in such other proportion as may be agreed by the effectiveness of any Incremental Assumption Agreement, this Agreement Lenders and the Agent). The Agent shall be amended have up to ten (10) days to deliver a response regarding the extent (but only to the extent) necessary to reflect the existence and terms amount of the requested Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f)that the Lenders will provide. Any such deemed amendment may be memorialized in writing by If the Administrative Agent with existing Lenders fail to provide the Borrower’s consent (not to be unreasonably withheld) and furnished to full amount of the other parties hereto.
(d) Notwithstanding the foregoing, no requested Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectivenessLoan, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate Borrower may offer it to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent new lenders which may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption join this Agreement, junior to) the existing Term Loans, (iii) after giving effect with all terms and conditions to such Incremental Term Loan Commitments Loans remaining unchanged with the possible exception of any mutually agreed amendments to the Interest Rate and the Loans fees to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect applicable to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Lead Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) may at any time and from time to time, time request that one or more Lenders (or one or more Eligible Transferees who will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrowers and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Amendment, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by Lead Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Amendment shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate principal amount of any Incremental Term Loans on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Term Loans incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vii) Lead Borrower shall specifically designate, in consultation with the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in an aggregate amount the applicable Incremental Term Loan Amendment, (viii) if to be incurred as a new Tranche of not Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than $10,000,000 the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity (in each case of the foregoing clauses (a) and in integral multiples (b), excluding for this purpose, interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the requirements of $1,000,000 in excess thereofthis clause (I)), (iiII) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Amendment; provided, however, that if the Effective Yield for any such Incremental Term Loans incurred prior the date that is six (6) months after the First Restatement Effective Date, exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.75% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrowers shall be Obligations of the Borrowers under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on which a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Amendment as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrowers, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such Term Loan Amendment (which shall not require the consent of any other documentation as Lender), with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, Loan Amendment shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Amendment, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued at the Applicable Margin relating Borrowers’ expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Amendment shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Amendment shall have the same Borrowers, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. The Borrower agrees To the extent the provisions of the preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Lenders making new Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Term SOFR Term Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO RateTerm SOFR Term Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be ratably increased permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the aggregate principal amount Administrative Agent of the LIBO RateTerm SOFR in such Incremental Term Loanscircumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Samples: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Incremental Term Loan Commitments. (a) The Lead Borrower mayshall have the right, by written notice to in consultation and coordination with the Administrative Agent (signed by a Responsible Officer as to all of the matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to the Borrowers and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Lead Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 after the Closing Date and all Indebtedness incurred pursuant to Section 10.04(xxvii)(A) shall not exceed the sum of (x) the greater of $175,000,000 and 100.0% of Consolidated EBITDA for the most recently ended four fiscal quarter period, plus (y) the sum of all voluntary prepayments of Term Loans, Refinancing Notes and Indebtedness incurred pursuant to Section 10.04(xxvii) that ranks pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) (in each case other than with the proceeds of long-term Indebtedness (other than Indebtedness under the ABL Credit Agreement)) in each case prior to the date of incurrence of any such Incremental Term Loan Commitments plus (z) an unlimited amount so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of such date would not exceed 3.75 to 1.00 (it being understood and agreed that the Lead Borrower may elect to use clause (z) above prior to clauses (x) or (y) above or any combination thereof, and any portion of any Incremental Term Loans incurred in reliance on clause (x) above shall be reclassified, as the Lead Borrower may elect from time to time, request as incurred under clause (z) above if the Lead Borrower meets the ratio set forth therein at such time on a Pro Forma Basis); (vi) the proceeds of all Incremental Term Loans incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vii) each Incremental Term Loan CommitmentsCommitment Agreement shall specifically designate, in an aggregate amount not to exceed $80,000,000 from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) with the amount approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofSection 2.15(c) are satisfied), (iiviii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrowers shall be Obligations of the Borrowers under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under the Subsidiaries Guaranty, on which a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under the Subsidiaries Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrowers, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit L (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued at the Applicable Margin relating Borrowers’ expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence respective Tranche proportionately; and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to To the extent any the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of add such Incremental Term Loans shall be ratably increased by to the aggregate principal amount then outstanding Borrowings of LIBO Rate Term Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term LoansLoans having short Interest Periods i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Term Loans of such Tranche and which will end on the last day of such Interest Period). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower maySo long as the Incremental Term Loan Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, Parent shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.24, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Closing Date and prior to the date which is 12 months prior to the Term Loan Maturity Date, that one or more Lenders (and/or one or more other persons which will become Lenders as provided below) provide Incremental Term Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Loans pursuant thereto to Parent (any such Loans, “Incremental Term Loans”); it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice Parent, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan CommitmentsAgreement in respect thereof as provided in clause (b) of this Section 2.24, in an aggregate amount such Lender shall not be obligated to exceed $80,000,000 from one or more fund any Incremental Term Lenders Loans, (which may include ii) any existing Lender (including any person who will become a Lender) willing to may so provide such an Incremental Term Loans in their own discretion. Such notice shall set forth Loan Commitment without the consent of any other Lender, (iiii) the amount provision of the Incremental Term Loan Commitments being requested (which pursuant to this Section 2.24 shall be in an a minimum aggregate amount (for all Lenders (including any person who will become a Lender)) of not less than at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (iiiv) the date on which such aggregate amount of all Incremental Term Loan Commitments are requested provided pursuant to become effective (the “Increased Amount Date”)this Section 2.24 shall not exceed $150,000,000, (iiiv) whether such all Incremental Term Loans provided pursuant to an Incremental Term Loan Commitments are Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Loan Documents and shall be guaranteed and secured by the relevant Security Documents on a pari passu basis with all other Obligations guaranteed and/or secured by each such Security Document and (vi) all actions taken by Parent pursuant to this Section 2.24 shall be done in coordination with the Administrative Agent. Any Incremental Term Loans made on a single Incremental Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Date (as defined below) shall be designated a separate series (a “Series”) of Incremental Term Loans (“Other Term Loans”)for all purposes of this Agreement.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.24, Parent, the Administrative Agent and each such Lender or other person which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and Term Loan Agreement, with the effectiveness of such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Lender’s Incremental Term Loan Commitment of to occur on the date set forth in such Incremental Term Lender. Each Incremental Assumption Loan Agreement shall specify (the terms of the applicable “Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior Loan Date”), which date in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans event shall be no earlier than the Maturity Datedate on which, (iiiv) all fees (if any) required to be paid in connection therewith at the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share time of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowerbeen paid, (iiw) the Administrative Agent shall have received customary legal opinionsevidence reasonably satisfactory to it that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitment shall constitute “Designated Senior Indebtedness” under the Senior Subordinated Note Indenture or any indenture governing any Permitted Senior Subordinated Debt Securities, board resolutions and other customary closing certificates and documentation as required (x) the Administrative Agent shall have received evidence reasonably satisfactory to it that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitments are permitted by the relevant terms of the outstanding Indebtedness of Holdings, Parent and their respective Subsidiaries including, without limitation, the Senior Note Documents and the Senior Subordinated Note Documents, (y) all Incremental Assumption Agreement and, Term Loan Commitment Requirements are satisfied and (z) all other conditions set forth in this Section 2.24 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the extent required effectiveness of each Incremental Term Loan Agreement, and at such time Schedule 2.01 shall be deemed modified to reflect the amount of each Incremental Term Loan Commitment.
(c) On any Incremental Term Loan Date on which any Incremental Term Loan Commitments of any Series are effective, each Incremental Term Loan Lender of any Series shall make an Incremental Term Loan to Parent in an amount equal to its Incremental Term Loan Commitment of such Series. The terms and provisions of Incremental Term Loans of any Series shall be, except as otherwise set forth herein or in the Incremental Term Loan Agreement, identical to the Term Loans (including, without limitation, as to any mandatory prepayments); provided, however, that (i) the applicable Incremental Term Loan Maturity Date of each Series will be no shorter than the final maturity of the Term Loans and (ii) the rate of interest applicable to the Incremental Term Loans of any Series shall be determined by Parent and the applicable Incremental Term Loan Lenders and shall be set forth in each applicable Incremental Term Loan Agreement. Each Incremental Term Loan Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, consistent to effect the provisions of this Section 2.24.”.
12. Section 5.12 of the Credit Agreement is hereby amended by deleting said Section in its entirety and inserting in lieu thereof the text “[Intentionally deleted]”.
13. Section 6.01 of the Credit Agreement is hereby amended by (i) deleting the word “and” from the end of paragraph (u) thereof, (ii) deleting the period at the end of paragraph (v) thereof and replacing it with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loanstext “; and”, (iii) after giving effect to such Incremental Term Loan Commitments and inserting the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and following new paragraph (ivw) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
following paragraph (ev) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.thereof:
Appears in 1 contract
Samples: Credit Agreement (New Skies Satellites Holdings Ltd.)
Incremental Term Loan Commitments. (a) The Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, Commitments in an aggregate amount not to exceed $80,000,000 from one or more the Incremental Amount; provided that (A) the Borrower shall first seek Incremental Term Lenders Loan Commitments from the existing Lenders, (which may include B) any existing Lender) willing Lender approached to provide any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loans in their own discretionLoan Commitment, (C) if the existing Lenders decline to provide the full amount of such Incremental Term Loan Commitments, the Borrower may then seek Incremental Term Loan Commitments on the same terms from other persons and (D) any person that the Borrower proposes to become an Incremental Term Lender, if such person is not then an existing Lender, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate minimum increments of $5,000,000 and a minimum amount of not less than $10,000,000 and 10,000,000, or equal to the remaining Incremental Amount or, in integral multiples of $1,000,000 in excess thereofeach case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or (x) commitments to make term loans with pricing terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or amortization other terms different from the Term B Loans or the Term B-1 Loans (“Other Term Loans”).
(b) The terms and conditions of any Incremental Term Loan Commitments and the Incremental Term Loans shall be governed by this Agreement unless otherwise provided in the applicable Incremental Assumption Agreement. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that provided, that:
(i) any commitments to make additional Term B Loans shall have the same terms as the Term B Loans;
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or junior in right of payment and of security with the Term B Loans and shall have the same guarantees and collateral as the Term B Loans;
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the latest of the Term B Facility Maturity Date and, except as to pricing, amortization and amortization, final maturity date, participation in mandatory prepayments, and any financial maintenance covenants contemplated by clause (x) below (which, in each case, shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) the same substantially similar terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, ;
(iiiv) the final maturity date of there shall be no amortization;
(v) with respect to any Other Term Loans Loan, the All-in Yield shall be no earlier than the Maturity same as that applicable to the Term B Loans on the Closing Date, (iii) except that the terms applicable to each series All-in Yield in respect of any such Other Term Loans shall not require any prepayment thereof Loan may exceed the All-in excess of the pro rata share Yield in respect of such series relative to all Term B Loans (including the Term Loans made on the Closing Date and all other Other by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term LoansYield Differential”) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter by more than the remaining Weighted Average Life to Maturity of the Term Loans. If 0.50% then the Applicable Margin (which, for purposes of this sentence only, shall be deemed or the “Term SOFR floor” as provided in the following proviso) applicable to include all upfront the outstanding Term B Loans or similar fees or original issue discount payable to all Lenders providing such the Term B-1 Loans, as applicable, shall be increased such that after giving effect to such increase, the applicable Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of such Term Yield Differential is attributable to a higher “Term SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “Term SOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “Term SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding;
(vi) relating to such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder;
(vii) there shall be no obligor in respect of any Incremental Term Loan Commitment exceeds Commitments that is not a Loan Party; and
(viii) any Incremental Term Facility may include financial maintenance covenants in addition to, or more onerous than, the Applicable Margin relating to Financial Covenant (each, a “Previously Absent Financial Maintenance Covenant”) so long as such Previously Absent Financial Maintenance Covenant is added for the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness benefit of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans existing Facilities; provided that no existing Lender consent shall be adjusted required in order to be equal to the Applicable Margin relating to add such Incremental Term Loan Commitment minus 0.25%.
(c) Previously Absent Financial Maintenance Covenant. Each of the parties party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and clause (c) of Section 4.02 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, ; (ii) the Borrower shall have delivered to the Administrative Agent shall have received such customary legal opinions, board resolutions resolutions, secretary’s certificates, officer’s certificates and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans, (iii) after giving effect to the proceeds of any Incremental Term Loan Commitment shall be used for general corporate purposes, other than for making Restricted Payments, and (iv) any fees and expenses owing in respect of such Incremental Term Loan Commitments and Incremental Term Loans owed to the Loans to be made thereunder Administrative Agent and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and Lenders hereunder or under the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default applicable Incremental Assumption Agreement shall have occurred and be continuingbeen paid.
(ed) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form Loans of additional Term Loansa different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate SOFR Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If .
(e) Notwithstanding anything in the foregoing to the contrary, (i) for the purpose of determining the number of outstanding SOFR Borrowings upon the incurrence of any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In additionLoans, to the extent the last date of Interest Periods for multiple SOFR Borrowings under the Term Facilities fall on the same day, such SOFR Borrowings shall be considered a single SOFR Borrowing and (ii) the initial Interest Period with respect to any SOFR Borrowing of Incremental Term Loans are not Other may, at the Borrower’s option, be of a duration of a number of Business Days that is less than one month, and the Adjusted Term LoansSOFR with respect to such initial Interest Period shall be the same as the Adjusted Term SOFR applicable to any then-outstanding SOFR Borrowing as the Borrower may direct, so long as the scheduled amortization payments under Section 2.07(a) required to be made after the making last day of such Incremental Term Loans shall be ratably increased by initial Interest Period is the aggregate principal amount same as the last day of the Interest Period with respect to such Incremental Term Loansoutstanding SOFR Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Chicken Soup for the Soul Entertainment, Inc.)
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right to request, at any time after the Initial Borrowing Date, that one or more Lenders (and/or one or more other Persons which are Qualified Persons and which will become Lenders) provide Incremental Term Loan Commitments to the Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent and the Borrower an Incremental Term Loan Commitment Agreement as provided in clause (signed by b) of this Section 2.14, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Qualified Person who will become a Responsible Officer Lender) may so provide an Incremental Term Loan Commitment without the consent of the Borrowerany other Lender, (iii) from time to time, request each Tranche of Incremental Term Loan Commitments, and all Incremental Term Loans to be made pursuant thereto, shall be denominated in an Dollars, (iv) the amount of each Tranche of Incremental Term Loan Commitments (whether constituting a new Tranche of Incremental Term Loans or being added to (and thereafter constituting a part of) a then outstanding Tranche of Term Loans) shall be in a minimum aggregate amount not to exceed $80,000,000 from one or more for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of Incremental Term Loans (including Qualified Persons who will become Lenders) of at least $25,000,000 (or such lower amount as may be reasonably acceptable to the Administrative Agent) and in integral multiples of $5,000,000 in excess thereof (or such other integral multiple as may be reasonably acceptable to the Administrative Agent), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.14 and the aggregate principal amount of all Incremental Term Loans to be made pursuant thereto shall not exceed the Maximum Incremental Term Loan Commitment Amount at such time, (vi) the up-front fees and, if applicable, any unutilized commitment fees and/or other fees, payable to each Incremental Term Loan Lender in respect of each Incremental Term Loan Commitment shall be separately agreed to by the Borrower and each such Incremental Term Loan Lender, (vii) each Tranche of Incremental Term Loans shall (A) have an Incremental Term Loan Maturity Date of no earlier than the Initial Term Loan Maturity Date, (B) have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Initial Term Loans and (C) be subject to the Applicable Margins as are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans; provided that, if the Applicable Margins for such Tranche of Incremental Term Loans (which, for such purposes only, shall be deemed to include all up-front or similar fees or original issue discount (amortized over the shorter of (x) the life of such Tranche of Incremental Term Loans and (y) four years) payable to all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans and any Eurodollar Rate floor or Base Rate floor applicable to such Incremental Term Loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared generally with all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans) determined as of the initial funding date for such Tranche of Incremental Term Loans exceeds the Applicable Margins (which may which, for such purposes only, shall be deemed to include all up-front or similar fees or original issue discount originally payable to all Lenders providing the Initial Term Loans or any existing LenderIncremental Term Loans theretofore incurred and any Eurodollar Rate floor or Base Rate floor applicable to the Initial Term Loans or such Incremental Term Loans) willing relating to provide the Initial Term Loans or such Incremental Term Loans in their own discretion. Such notice immediately prior to the effectiveness of the respective Incremental Term Loan Commitment Agreement by more than 0.50%, then the Applicable Margins relating to the Initial Term Loans and any Incremental Term Loans thereto incurred shall set forth be adjusted to be equal to the Applicable Margins (idetermined as provided above) relating to such Tranche of Incremental Term Loans minus 0.50%, (viii) the amount proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 8.08(c), (ix) each Incremental Term Loan Commitment Agreement shall specifically designate the Tranche or Tranches of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as the Initial Term Loans or any other then existing Tranche of not less than $10,000,000 and in integral multiples Term Loans) unless the requirements of $1,000,000 in excess thereofSection 2.14(c) are satisfied), (iix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the date other applicable Credit Documents and shall be secured by the Security Documents, and guaranteed under the Guaranties, on which a pari passu basis with all other Obligations secured by the Security Documents and guaranteed under the Guaranties, (xi) each Lender (including any Qualified Person who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iiiCommitment Agreement as provided in Section 2.01(c) whether and such Incremental Term Loan Commitments are Loans shall thereafter be deemed to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents, and (“Other Term Loans”)xii) other terms may differ if reasonably satisfactory to the Administrative Agent and the Borrower.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.14, the Borrower, the Administrative Agent and each such Lender or other Qualified Person which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as Term Loan Commitment Agreement, with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein (and the making of the respective Incremental Term Loans thereunder) to occur on the date set forth in such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior Loan Commitment Agreement, which date in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans event shall be no earlier than the Maturity Datedate on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (iiix) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.14 shall have been satisfied (or waived in writing by the terms applicable Required Lenders prior to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share incurrence of such series relative to all Incremental Term Loans Loan Commitments), and (including the Term Loans made on the Closing Date and z) all other Other conditions precedent that may be set forth in such Incremental Term LoansLoan Commitment Agreement shall have been satisfied (or waived in writing by the Lenders providing such Incremental Term Loan Commitments). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 1.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued, at the Applicable Margin relating Borrower’s expense, to such Incremental Term Loan Lender in conformity with the requirements of Section 2.05.
(c) Notwithstanding anything to the contrary contained above in this Section 2.14, the Incremental Term Loans Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, C-1, C-2, C-3, etc.), provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, a then outstanding Tranche of Term Loans so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended have the same Maturity Date and shall have the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added; provided, however, if the up-front fees and/or original issue discount (amortized over the shorter of (x) the life of such Tranche of Incremental Term Loans and (y) four years) payable to each Incremental Term Loan Lender providing such Tranche of Incremental Term Loans exceeds the up-front fees and/or original issue discount (amortized over the shorter of (x) the life of such Tranche of Term Loans and (y) four years) originally payable to the extent (but only Lenders that provided the Tranche of Term Loans to which such Incremental Term Loans are to be added by more than 0.50%, then the Applicable Margins for such Tranche of Term Loans shall be increased as, and to the extent) , necessary to reflect eliminate any such deficiency in excess of 0.50%;
(ii) the existence and terms of the new Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not Loans to be unreasonably withheld) and furnished made pursuant to the other parties hereto.
(d) Notwithstanding the foregoing, no such Incremental Term Loan Commitment Agreement shall become effective under this Section 2.20 unless have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Tranche of Term Loans to which such new Incremental Term Loans are being added (iwith the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche of Term Loans to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Term Loan Repayments of the respective Tranche of Term Loans proportionately); and
(iii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basisbasis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Lenders making new Incremental Term Loans add such Incremental Term Loans to ABR the then outstanding Borrowings of Eurodollar Loans reasonably required by of the Administrative Agent to respective Tranche of Term Loans, it is acknowledged that the effect the foregoing. If any thereof may result in such new Incremental Term Loan is Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to be allocated outstanding Eurodollar Loans of the respective Tranche and which will end on the last day of such Interest Period). In connection therewith, the Borrower hereby agrees to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Eurodollar Loans during an existing Interest Period for a LIBO Rate Loanon such basis as may be agreed by the Borrower and the respective Lender or Lenders as may be provided in the respective Incremental Term Loan Commitment Agreement. The Incremental Term Loan Agreement may, then with the interest rate thereon for consent of the Borrower and the Administrative Agent, but without the consent of any other Credit Party or the Lenders, effect such Interest Period amendments to this Agreement and the other economic consequences thereof shall Credit Documents as may be as set forth necessary or appropriate, in the applicable Incremental Assumption Agreement. In additionreasonable opinion of the Administrative Agent and the Borrower, to effect the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under provisions of this Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans2.14.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right, by written notice to in consultation and coordination with the Administrative Agent (signed by a Responsible Officer as to all of the Borrower) matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time, request time that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 after the Closing Date and all Indebtedness incurred pursuant to Section 10.04(xxvii)(A) shall not exceed the sum of (x) $325,000,000 plus (y) the sum of all voluntary prepayments of Term Loans, Refinancing Notes and Indebtedness incurred pursuant to Section 10.04(xxvii) that ranks pari passu with the Term Loans (limited, in an aggregate amount not the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to exceed $80,000,000 from one such Refinancing Notes or more Incremental Term Lenders other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) (which may include in each case other than with the proceeds of long-term Indebtedness (other than Indebtedness under the ABL Credit Agreement) and, for the avoidance of doubt, excluding the prepayment made in connection with the ASCO Transactions as contemplated by the definition thereof) in each case prior to the date of incurrence of any existing Lender) willing to provide such Incremental Term Loans Loan Commitments plus (z) an unlimited amount (a “Ratio-Based Incremental Facility”) so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of such date would not exceed 3.05 to 1.00 (it being understood that the Borrower may utilize amounts under clause (z) prior to amounts under clause (x) and that amounts under both clauses may be used in their own discretion. Such notice shall set forth a single transaction), (ivi) the amount proceeds of all Incremental Term Loans incurred by the Borrower may be used for any purpose not prohibited under this Agreement, (vii) each Incremental Term Loan Commitment Agreement shall specifically designate, with the approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofSection 2.15(c) are satisfied), (iiviii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Term B Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Term B Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on which a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit L (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued at the Applicable Margin relating Borrower’s expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately;
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by ; and
(iv) the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making Effective Yield of such Incremental Term Loans shall be ratably increased by would not result in an increase in the aggregate principal amount of Applicable Margins for the Tranche to which such new Incremental Term Loans are being added (assuming for this purpose, that such Incremental Term Loans had been incurred as a new Tranche of Incremental Term Loans). To the extent the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Term Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Term Loans of such Tranche and which will end on the last day of such Interest Period). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The U.S. Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, Commitments in an aggregate amount not to exceed $80,000,000 the Incremental Amount from one or more Incremental Term Lenders (Lenders, which may include any existing Lender) willing ; provided that each Term Lender, if not already a Lender hereunder, shall be subject to provide such Incremental Term Loans in their own discretionthe approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate minimum increments of $5,000,000 and a minimum amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereofor equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the “Increased Amount Date”date of such notice), and (iii) whether the terms on which such Incremental Term Loan Commitments are requested to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)made.
(b) The U.S. Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans to be made thereunder; provided that (i) without the Other prior written consent of the Required Lenders, the final maturity date of any Term Loans shall rank pari passu or junior in right of payment be no earlier than six months after the Revolving Credit Maturity Date and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (xii) the same terms as the Term Loans or (y) such other terms as of any Term Loans, to the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans . The Administrative Agent shall be no earlier than the Maturity Date, (iii) the terms applicable to promptly notify each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, Lender as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such each Incremental Term Loan Commitment minus 0.25%.
(c) Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments Commitment evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties heretothereby.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 2.25 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Financial Officer of the U.S. Borrower, (ii) at the time of, and after giving effect to, the incurrence of the Term Loans to be made under such Term Loan Commitment, the U.S. Borrower would be in Pro Forma Compliance, and (iii) the Administrative Agent shall have received customary (with sufficient copies for each of the Term Lenders) legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, an officer’s certificate consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings clauses (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loansa)(i), (iiia)(ii), (c)(ii)(B) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (ivd) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingSection 4.02.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, Commitments in an aggregate amount not to exceed $80,000,000 from one or more the Incremental Amount; provided that (A) the Borrowers shall first seek Incremental Term Lenders Loan Commitments from the existing Lenders, (which may include B) any existing Lender) willing Lender approached to provide any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loans in their own discretionLoan Commitment, (C) if the existing Lenders decline to provide the full amount of such Incremental Term Loan Commitments, the Borrowers may then seek Incremental Term Loan Commitments on the same terms from other persons and (D) any person that the Borrowers propose to become an Incremental Term Lender, if such person is not then an existing Lender, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate minimum increments of $5,000,000 and a minimum amount of not less than $10,000,000 and 10,000,000, or equal to the remaining Incremental Amount or, in integral multiples of $1,000,000 in excess thereofeach case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or (x) commitments to make term loans with pricing terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or amortization other terms different from the Term B Loans or the Term B-1 Loans (“Other Term Loans”).
(b) The Borrower terms and conditions of any Incremental Term Loan Commitments and the Incremental Term Loans shall be governed by this Agreement unless otherwise provided in the applicable Incremental Assumption Agreement. The Borrowers and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that provided, that:
(i) any commitments to make additional Term B Loans shall have the same terms as the Term B Loans;
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or junior in right of payment and of security with the Term B Loans and shall have the same guarantees and collateral as the Term B Loans;
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the latest of the Term B Facility Maturity Date and, except as to pricing, amortization and amortization, final maturity date, participation in mandatory prepayments, and any financial maintenance covenants contemplated by clause (x) below (which, in each case, shall, subject to the other clauses of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), shall have (x) the same substantially similar terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, ;
(iiiv) the final maturity date of there shall be no amortization;
(v) with respect to any Other Term Loans Loan, the All-in Yield shall be no earlier than the Maturity same as that applicable to the Term B Loans on the Closing Date, (iii) except that the terms applicable to each series All-in Yield in respect of any such Other Term Loans shall not require any prepayment thereof Loan may exceed the All-in excess of the pro rata share Yield in respect of such series relative to all Term B Loans (including the Term Loans made on the Closing Date and all other Other by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term LoansYield Differential”) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter by more than the remaining Weighted Average Life to Maturity of the Term Loans. If 0.50% then the Applicable Margin (which, for purposes of this sentence only, shall be deemed or the “Term SOFR floor” as provided in the following proviso) applicable to include all upfront the outstanding Term B Loans or similar fees or original issue discount payable to all Lenders providing such the Term B-1 Loans, as applicable, shall be increased such that after giving effect to such increase, the applicable Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of such Term Yield Differential is attributable to a higher “Term SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “Term SOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “Term SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding;
(vi) relating to such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder;
(vii) there shall be no obligor in respect of any Incremental Term Loan Commitment exceeds Commitments that is not a Loan Party; and
(viii) any Incremental Term Facility may include financial maintenance covenants in addition to, or more onerous than, the Applicable Margin relating to Financial Covenant (each, a “Previously Absent Financial Maintenance Covenant”) so long as such Previously Absent Financial Maintenance Covenant is added for the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness benefit of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans existing Facilities; provided that no existing Lender consent shall be adjusted required in order to be equal to the Applicable Margin relating to add such Incremental Term Loan Commitment minus 0.25%.
(c) Previously Absent Financial Maintenance Covenant. Each of the parties party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Primary Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and clause (c) of Section 4.02 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Primary Borrower, ; (ii) the Borrowers shall have delivered to the Administrative Agent shall have received such customary legal opinions, board resolutions resolutions, secretary’s certificates, officer’s certificates and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans, (iii) after giving effect to the proceeds of any Incremental Term Loan Commitment shall be used for general corporate purposes, other than for making Restricted Payments, and (iv) any fees and expenses owing in respect of such Incremental Term Loan Commitments and Incremental Term Loans owed to the Loans to be made thereunder Administrative Agent and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and Lenders hereunder or under the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default applicable Incremental Assumption Agreement shall have occurred and be continuingbeen paid.
(ed) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form Loans of additional Term Loansa different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis. The Borrower agrees Borrowers agree that Section 2.16 shall apply to any conversion of LIBO Rate SOFR Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If .
(e) Notwithstanding anything in the foregoing to the contrary, (i) for the purpose of determining the number of outstanding SOFR Borrowings upon the incurrence of any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In additionLoans, to the extent the last date of Interest Periods for multiple SOFR Borrowings under the Term Facilities fall on the same day, such SOFR Borrowings shall be considered a single SOFR Borrowing and (ii) the initial Interest Period with respect to any SOFR Borrowing of Incremental Term Loans are not Other may, at the Primary Borrower’s option, be of a duration of a number of Business Days that is less than one month, and the Adjusted Term LoansSOFR with respect to such initial Interest Period shall be the same as the Adjusted Term SOFR applicable to any then-outstanding SOFR Borrowing as the Primary Borrower may direct, so long as the scheduled amortization payments under Section 2.07(a) required to be made after the making last day of such Incremental Term Loans shall be ratably increased by initial Interest Period is the aggregate principal amount same as the last day of the Interest Period with respect to such Incremental Term Loansoutstanding SOFR Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Chicken Soup for the Soul Entertainment, Inc.)
Incremental Term Loan Commitments. (a) The Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, Commitments in an aggregate amount not to exceed $80,000,000 the Incremental Term Loan Amount from one or more Incremental Term Lenders Loan Lenders, each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable (which may include any existing Lenderacceptance shall not be unreasonably withheld or delayed) willing to provide such Incremental Term Loans in their own discretionthe Administrative Agent. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples minimum increments of $1,000,000 in excess thereof), and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount) and (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the “Increased Amount Date”), (iii) whether date of such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”notice).
(b) The Borrower will first seek Incremental Term Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion); provided, that if the Borrower requests Incremental Term Loan Commitments it only needs to give existing Lenders ten (10) Business Days to commit to provide such Incremental Term Loan Commitments on terms and conditions satisfactory to the Borrower to satisfy the foregoing. Thereafter, if additional commitments are needed, from additional banks, financial institutions and other institutional lenders who will become Incremental Term Loan Lenders in connection therewith. The Borrower and each Incremental Term Loan Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such each Incremental Term Loan Lender. Each Except as set forth in the next succeeding sentence or in the Incremental Term Loan Assumption Agreement shall specify Agreement, the terms and provisions of the applicable Incremental Term Loans shall be identical to those of any prior Incremental Term Loans; provided that . Without the prior written consent of the Required Lenders, (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Incremental Term Loans shall be no earlier than the Maturity sixth (6th) anniversary of the Closing Date, (iiiii) the terms applicable weighted average life to each series of Other Term Loans shall not require any prepayment thereof in excess maturity of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any prior Incremental Term Loan Commitment exceeds Loans and (iii) if the Applicable Margin relating to the initial yield on such Incremental Term Loans or (as reasonably determined by the Credit-Linked Deposits, as Administrative Agent in consultation with the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted Borrower to be equal to the Applicable Margin relating to sum of (x) the margin above the Eurodollar Rate on such Incremental Term Loans (taking into account any interest rate floors) and (y) if such Incremental Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings, the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Incremental Term Loans and (B) four) exceeds the all-in-yield (calculated on the same basis) then in effect for the Eurodollar Rate on any prior Incremental Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for prior Incremental Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the new Incremental Term Loans. For the avoidance of doubt, arrangement, structuring and underwriting fees paid or payable to any Lead Arranger or its affiliates will not be taken into account when calculating the Yield Differential. Each Incremental Term Loan Commitment minus 0.25%.
(c) Assumption Agreement shall specify the conditions precedent to the applicable new Incremental Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments Commitment and the Incremental Term Loans evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by and the Administrative Agent with and the Borrower’s consent (not Borrower may revise this Agreement to be unreasonably withheld) and furnished to the other parties heretoevidence such amendments.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 2.19 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs paragraph (b) and (c) of Section 4.02 3.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement, the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required reasonably requested by the Administrative Agent, Agent and consistent with those delivered on the Closing Date under Section 4.01 and 3.1, (iii) on the date of such additional customary documents and filings (including amendments to the Mortgages and effectiveness, such other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by conditions set forth in the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term LoansLoan Asusmption Agreement shall be satisfied, (iiiiv) after giving pro forma effect to such Incremental Term Loan Commitments Commitment and the Incremental Term Loans to be made thereunder and the application of the proceeds therefrom as if made and applied therefrom, (x) the Borrower shall be in compliance with the financial covenant set forth in Section 5.1 on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio a Pro Forma Basis as of the Closing Date last day of the last Fiscal Quarter for which Financial Statements are required to be delivered hereunder, and (ivy) both before and after giving effect to the Borrower’s Senior Secured Leverage Ratio on a Pro Forma Basis as of the date of the initial borrowing under such Incremental Term Loan Commitments Commitment shall not exceed 2.00:1.00, (v) the Loan Parties shall take the actions specified in Schedule 2.19 as promptly as reasonably practicable, and in any event within the Loans periods after the Effective Date (as such term is defined in the Incremental Term Loan Assumption Agreement) specified in said Schedule 2.19, and (vi) to the extent reasonably necessary to maintain the continuing priority of the Lien of the Mortgages as security for the Obligations, as determined by the Administrative Agent in its reasonable discretion (x) the applicable Loan Party to any Mortgages shall, within 60 days of such incurrence (or such later date as agreed by the Administrative Agent), have entered into, and delivered to the Administrative Agent, at the direction and in the reasonable discretion of the Administrative Agent a mortgage modification or new Mortgage in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent, (y) the Borrower shall have caused to be made thereunder and delivered to the application Administrative Agent for the benefit of the proceeds therefrom Secured Parties an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to the Administrative Agent insuring that the priority of the Lien of the Mortgages as if made security for the Obligations has not changed and applied on such date, confirming and/or insuring that since the issuance of the title insurance policy there has been no Default change in the condition of title and there are no intervening liens or Event encumbrances which may then or thereafter take priority over the Lien of Default the Mortgages (other than those expressly permitted by Section 8.2) and (z) the Borrower shall have occurred and be continuingdelivered, at the request of the Administrative Agent, to the Administrative Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Lien of the Mortgages as security for the Obligations.
(ed) Each of the parties hereto hereby agrees that the Administrative Agent may may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Incremental Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply This may be accomplished by requiring each outstanding Borrowing of Eurodollar Rate Incremental Term Loans to any be converted into a Borrowing of Base Rate Term Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding Borrowing of Eurodollar Rate Incremental Term Loans on a pro rata basis. Any conversion of LIBO Rate Eurodollar Incremental Term Loans to ABR Base Rate Term Loans reasonably required by the Administrative Agent preceding sentence shall be subject to effect the foregoingSection 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Borrowing of Eurodollar Rate LoanTerm Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The So long as the Incremental Loan Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, Silgan shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 1.14, but without requiring the consent of any of the Agents (except as otherwise provided in this Section 1.14) or the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Incremental Commitment Termination Date for the respective Tranche of Incremental Term Loans that one or more Lenders (and/or one or more other Persons which are Eligible Transferees which will become Lenders) provide to the Incremental Term Loan Borrower mayfor the respective Tranche of Incremental Term Loan Commitments under such Tranche of Incremental Term Loans as designated in the respective Incremental Term Loan Commitment Agreement and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; provided that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to Silgan, the respective Foreign Incremental Term Loan Borrower (if applicable) and the Administrative Agent an Incremental Term Loan Commitment Agreement as provided in clause (b) of this Section 1.14, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of the Administrative Agent or any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be made available to a single Incremental Term Loan Borrower and shall be denominated in a single Currency which, in the case of an Other Alternate Currency, shall be approved by written notice the Administrative Agent, (iv) the amount of each Tranche of Incremental Term Loan Commitments shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of Incremental Term Loans (including Eligible Transferees who will become Lenders) of at least $50,000,000 (or the Dollar Equivalent thereof as determined at the time that Incremental Term Loan Commitments are obtained), (v) the aggregate amount of all Incremental Term Loan Commitments permitted to be provided pursuant to this Section 1.14, when combined with the aggregate amount of Incremental Revolving Loan Commitments permitted to be provided pursuant to Section 1.15, shall not exceed $350,000,000 in the aggregate (or the Dollar Equivalent thereof as determined at the time that such Incremental Term Loan Commitments are obtained) (it being understood and agreed, however, to the extent that any such Incremental Term Loan Commitments are obtained but later expire, terminate or are voluntarily reduced in each case without being utilized, the amount of such Incremental Term Loan Commitments so expired, terminated or voluntarily reduced may again be available to be obtained under this Section 1.14 within the limits set forth herein), (vi) the up-front fees and, if applicable, any unutilized commitment fees and/or other fees, payable in respect of each Incremental Term Loan Commitment shall be separately agreed to by Silgan, the respective Foreign Incremental Term Loan Borrower (if applicable) and each Incremental Term Loan Lender (and with all such fees to be disclosed by Silgan to the Administrative Agent Agent), (signed by a Responsible Officer vii) each Tranche of the BorrowerIncremental Term Loans shall have (I) from time to time, request an Incremental Term Loan CommitmentsMaturity Date of no earlier than the B Term Loan Maturity Date and (II) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the B Term Loans, in an aggregate amount not to exceed $80,000,000 from one or more Incremental Term Lenders (which may include any existing Lenderviii) willing to provide such the proceeds of all Incremental Term Loans in their own discretion. Such notice shall set forth be used only for the purposes permitted by Section 6.10, (iix) each Incremental Term Loan Commitment Agreement shall specifically designate, with the amount approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans) unless the requirements of $1,000,000 in excess thereofSection 1.14(c) are satisfied), (iix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) (including, without limitation, Incremental Term Loans incurred by a Foreign Incremental Term Loan Borrower) shall be Obligations under this Agreement and the date other applicable Credit Documents and shall be secured by the US Collateral, and guaranteed under the US Borrowers/Subsidiaries Guaranty, on which a pari passu basis with all other Term Loans, (xi) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by a Foreign Incremental Term Loan Borrower also shall be secured and guaranteed to the extent required by Section 5.04(b), and (xii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in Section 1.01(c) and such Loans shall thereafter be deemed to become effective (the “Increased Amount Date”), (iii) whether such be Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from Loans under such Tranche for all purposes of this Agreement and the Term Loans (“Other Term Loans”)other applicable Credit Documents.
(b) The At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 1.14, Silgan, the respective Foreign Incremental Term Loan Borrower (if applicable), each other Credit Party, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an "Incremental Term Loan Lender") shall execute and deliver to Silgan, the respective Foreign Incremental Term Loan Borrower (if applicable) and the Administrative Agent an Incremental Assumption Agreement and such other documentation as Term Loan Commitment Agreement, appropriately completed (with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment of provided therein to occur on the date set forth in such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior Loan Commitment Agreement, which date in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans event shall be no earlier than the Maturity Datedate on which (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Commitment Effectiveness Requirements have been satisfied, (iii) the terms applicable to each series of Other Term Loans all conditions set forth in this Section 1.14 shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) have been satisfied and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall all other conditions precedent that may be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing set forth in such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating Agreement shall have been satisfied). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loans Loan Commitment Agreement and, at such time, Schedule I shall be deemed modified to reflect the Incremental Term Loan Commitments of such Incremental Term Loan Lenders.
(c) Notwithstanding anything to the contrary contained above in this Section 1.14, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., A-1, A-2, B-1, B-2, C-1, C-2, etc.), provided that, with the coxxxxx xx xxx Xxxxxxxxxxxxxx Agent, the parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Incremental Term Loans or to the effectiveness outstanding Tranche of B Term Loans, in either case so long as the applicable following requirements are satisfied:
(i) the Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, shall be denominated in the same Currency, shall have the same Maturity Date and shall have the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Term Loan Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Term Loan Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Term Loan Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 1.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basisbasis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche, and so that the existing Lenders with respect to such Tranche continue to have the same participation (by amount) in each Borrowing as they had before the making of the new Term Loans of such Tranche. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply Lenders making new Incremental Term Loans add such Incremental Term Loans to any conversion the then outstanding Borrowings of LIBO Euro Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to ABR outstanding Euro Rate Loans reasonably required by of such Tranche and which will end on the Administrative Agent to effect last day of such Interest Period). In connection therewith, the foregoing. If any respective Incremental Term Loan is Borrower may agree, in the respective Incremental Term Loan Commitment Agreement, to be allocated to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Euro Rate Loans during an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for on such Interest Period and the other economic consequences thereof shall basis as may be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of agreed by such Incremental Term Loans shall be ratably increased by Loan Borrower and the aggregate principal amount of such Incremental Term Loansrespective Lender or Lenders.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower maySo long as no Default or Event of Default then exists or would result therefrom, the Borrowers shall have the right to request on one or more occasions prior to the Revolving Loan Maturity Date that one or more Lenders and/or one or more other Eligible Assignees provide Incremental Term Loan Commitments under a given Tranche of Incremental Term Loans as designated in the Incremental Term Loan Commitment Agreement in accordance with the provisions of this Agreement and, subject to the terms and conditions contained in this Agreement and the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans, pursuant thereto, it being understood and agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 1.16, such Lender shall not be obligated to fund any Incremental Term Loans;
(ii) except as otherwise provided in clauses (ix) and (x) below, any Lender or other Eligible Assignee may so provide an Incremental Term Loan Commitment without the consent of any other Lender;
(iii) each provision of Incremental Term Loan Commitments pursuant to this Section 1.16 on a given date pursuant to a particular Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount not to exceed (for all Lenders and other Eligible Assignees who will become Lenders pursuant thereto) of $80,000,000 from one or more 25,000,000;
(iv) the aggregate amount of all Incremental Term Lenders Loan Commitments permitted to be provided pursuant to this Section 1.16 shall not exceed, when added to the aggregate principal amount of Permitted Senior Unsecured Notes issued pursuant to Section 9.04(xx) from and after the Effective Date, $300,000,000;
(which may include any existing Lenderv) willing to provide such each Incremental Term Loans in their own discretion. Such notice Loan Commitment Agreement pursuant to which Incremental Term Loan Commitments are being provided shall set forth (i) specifically designate the amount Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Term Loans or Incremental Term Loan Commitments) unless the requirements of following Section 1.16(c) are satisfied);
(vi) each Lender agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitment Agreement as provided in Section 1.01(g) and such Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other Credit Documents;
(vii) the fees and interest to be paid to any Eligible Assignees other than then existing Lenders that have been requested by the Borrowers to provide Incremental Term Loan Commitments shall be no greater than that to be paid (or which was offered to) to the then existing Lenders providing (or which were requested to provide) any such requested Incremental Term Loan Commitments);
(viii) all Incremental Term Loans to be incurred pursuant to Incremental Term Loan Commitments provided in response to a particular request for same made by the Borrowers in accordance with clause (b) of this Section 1.16 shall be incurred pursuant to Incremental Term Loan Commitments provided pursuant to a single Incremental Term Loan Commitment Agreement, which may be executed in counterparts;
(ix) unless both (I) the Required Lenders and (II) those Lenders holding (as outstanding Loans or existing Revolving Loan Commitments, as the case may be) (x) a majority of the aggregate principal amount of outstanding Term Loans of each Tranche having a Maturity Date after such proposed Maturity Date plus (y) if such proposed Maturity Date is to be prior to the Revolving Loan Maturity Date, a majority of the Total Revolving Loan Commitment, expressly agree in writing, in no event shall the Maturity Date of the Incremental Term Loans to be provided pursuant to any Incremental Term Loan Commitment Agreement be earlier than the Maturity Date of any other Tranche of Loans (or Revolving Loan Commitment) outstanding at the time such Incremental Term Loans are incurred;
(x) unless both (I) the Required Lenders and (II) those Lenders holding a majority of the aggregate principal amount of outstanding Term Loans having a Weighted Average Life to Maturity which is longer than the Weighted Average Life to Maturity of the Incremental Term Loans to be made pursuant to the relevant Incremental Term Loan Commitments expressly agree in writing, in no event shall the Weighted Average Life to Maturity of the Incremental Term Loans to be provided pursuant to any Incremental Term Loan Commitment Agreement be less than the Weighted Average Life to Maturity of any other Tranche of Term Loans outstanding at the time such Incremental Term Loans are incurred;
(xi) the Borrowers shall be in an aggregate amount of not less than $10,000,000 compliance with Sections 9.08, 9.09 and in integral multiples of $1,000,000 in excess thereof), 9.10 (ii) the date calculated on which a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments are requested (and any other then existing Incremental Term Loan Commitments) have been incurred and the proceeds thereof applied in a manner as certified to become effective by an Authorized Officer of each Borrower to the Administrative Agent) at such time; and
(xii) the “Increased Amount Date”), (iii) whether such Borrowers shall provide the Administrative Agent with notice of each request for Incremental Term Loan Commitments are pursuant to be Term Loan Commitments or commitments to make term loans this Section 1.16 contemporaneously with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)making of each such request.
(b) The Borrower At the time of any provision of Incremental Term Loan Commitments of a given Tranche pursuant to this Section 1.16, (i) the Borrowers, and each Lender or other Eligible Assignee which agrees to provide an Incremental Term Lender Loan Commitment (each an "Incremental Term Loan Lender") shall execute (which execution may be in counterparts) and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement (it being understood that a single Incremental Term Loan Commitment Agreement shall be executed and delivered by all Incremental Term Loan Lenders providing Incremental Term Loan Commitments in response to a particular request for same made by the Borrowers) substantially in the form of Exhibit C (appropriately completed and with such modifications as may be reasonably acceptable to the Administrative Agent), with the effectiveness of the Incremental Term Loan Commitment(s) provided therein to occur on the date set forth in such Incremental Term Loan Commitment Agreement and the payment of any fees required in connection therewith; (ii) VHS Holdco I and its Subsidiaries shall have delivered such other documentation amendments, modifications and/or supplements to the Security Documents (if any) as are necessary or, in the reasonable opinion of the Administrative Agent, desirable to ensure that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitments are secured by, and entitled to the benefits of, the Security Documents; (iii) the Administrative Agent shall receive an acknowledgment from the Credit Parties that the Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments are entitled to the benefits of the Subsidiaries Guaranty and the Security Documents, together with resolutions executed by the Subsidiary Guarantors, stating that the Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments are entitled to benefits of the Subsidiaries Guaranty and the Security Documents; (iv) the Administrative Agent shall have received evidence reasonably specify satisfactory to evidence it that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have Commitments are (x) permitted by the same terms as the Term Loans or Permitted Senior Unsecured Note Documents (if any) and (y) such other terms as permitted by, and constitute "Senior Indebtedness" and "Designated Senior Indebtedness" (or any similar term) under, the New Senior Subordinated Note Documents, the Existing Senior Subordinated Note Documents and the Permitted Subordinated Note Documents (if any); and (v) the Borrowers shall be deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, (ii) from counsel to the final maturity date of any Other Term Loans shall be no earlier than Borrowers reasonably satisfactory to the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin Administrative Agent (which, for purposes unless otherwise requested by the Administrative Agent, may be VHS Holdco II's General Counsel) and dated such date, covering such matters as the Administrative Agent may reasonably request (including, without limitation, the matters described in immediately preceding clause (iv)). The Administrative Agent shall promptly notify each Lender as to the effectiveness of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any each Incremental Term Loan Commitment exceeds Agreement, and shall deliver to each Lender a copy of same, and (i) at such time Annex I shall be deemed modified to reflect the Applicable Margin relating Incremental Term Loan Commitments (including the Tranche or Tranches thereof) of the respective Incremental Term Loan Lenders and (ii) to the extent requested by such Incremental Term Loan Lenders, the appropriate Notes will be issued, at the Borrowers' expense, to such Incremental Term Loan Lenders, to be consistent with the requirements of Section 1.05 (with appropriate modifications, to the extent needed) to reflect the Incremental Term Loans made by such Incremental Term Loan Lenders or the Credit-Linked DepositsLender, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower maySo long as the Incremental Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Company shall have the right in coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.21, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Closing Date, that one or more Lenders (and/or one or more other Persons which are Eligible Assignees and which will become Lenders) provide Incremental Term Loan Commitments to the Borrowers and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; provided, however, that:
(i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Company, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of and the Borrower) from time to time, request Borrowers an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 2.21, such Lender shall not be obligated to fund any Incremental Term Loans;
(ii) any Lender (including any Eligible Assignee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender;
(iii) the amount of each Tranche of Incremental Term Loan Commitments shall be in an a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of Incremental Term Loans (including Eligible Assignees who will become Lenders) of at least $50,000,000 and in integral multiples of $5,000,000 in excess thereof;
(iv) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.21 plus the aggregate amount of all Incremental Revolving Commitments provided pursuant to Section 2.22 shall not to exceed $80,000,000 from one or more 250,000,000;
(v) any payable to each Incremental Term Lenders Loan Lender in respect of each Incremental Term Loan Commitment shall be separately agreed to by the Borrowers (which may include any existing Lenderor the Company) willing to provide and each such Incremental Term Loan Lender;
(vi) each Tranche of Incremental Term Loans shall (A) have an Incremental Term Loan Maturity Date of no earlier than the Term Loan Maturity Date, (B) have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in their own discretion. Such notice shall effect for the Term Loans and (C) be subject to the Applicable Margins as are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans,
(ivii) the amount proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 6.10;
(viii) each Incremental Term Loan Commitment Agreement shall specifically designate the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans or other Term Loans) unless the requirements of Section 2.21(c) are satisfied);
(ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Loan Documents; and
(x) each Lender (including any Eligible Assignee who will become a Lender) agreeing to provide an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which such Incremental Term Loan Commitments are requested Commitment pursuant to become effective (the “Increased Amount Date”), (iii) whether such an Incremental Term Loan Commitments are Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Section 2.21, make Incremental Term Loans specified in the Incremental Term Loan Commitment Agreement as provided in Section 2.1 and such Loans shall thereafter be deemed to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Incremental Term Loans (“Other Term Loans”)under such new Tranche for all purposes of this Agreement and the other applicable Loan Documents.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.21, the Borrowers, the Administrative Agent and each such Lender or other Eligible Assignee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as Term Loan Commitment Agreement, with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment of Commitments provided therein to occur on the date set forth in such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior Loan Commitment Agreement, which date in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans event shall be no earlier than the Maturity Datedate on which (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any Affiliate thereof)), (ii) all Incremental Loan Commitment Requirements are satisfied and (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other conditions precedent that may be set forth in such Incremental Term Loans) Loan Commitment Agreement shall have been satisfied or waived. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement, and (iv) at such time, to the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to extent requested by any Incremental Term Loan Commitment exceeds Lender, a Note will be issued, at the Applicable Margin relating Company’s expense, to such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.21, the Incremental Term Loans provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to an Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, C-1, C-2, C-3, etc.), provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Incremental Term Loans or the outstanding Term Loans, so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same maturity date and shall have the same Applicable Margins as the Tranche of Term Loans or Incremental Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same scheduled payments pursuant to Section 2.3 as the then existing Term Loans or Incremental Term Loans (with the amount of each scheduled repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining payment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2, such new Incremental Term Loans shall be ratably increased by added to (and form part of) each borrowing of outstanding Term Loans or Incremental Term Loans of the aggregate principal amount respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Tranches), so that each Incremental Term Loan Lender will participate proportionately in each then outstanding borrowing of Term Loans or Incremental Term Loans of the respective Tranche. To the extent the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term LoansLoans to the then outstanding borrowings of Eurodollar Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Eurodollar Rate Loans of such Tranche and which will end on the last day of such Interest Period). In connection therewith, the Borrowers shall compensate the Incremental Term Loan Lenders making the new Incremental Term Loans of the respective Tranche for funding Eurodollar Rate Loans during an existing Interest Period on such basis as may be agreed by the Company and the respective Incremental Term Loan Lender or Lenders as may be provided in the respective Incremental Term Loan Commitment Agreement.
Appears in 1 contract
Samples: Credit Agreement (Rri Energy Inc)
Incremental Term Loan Commitments. (a) The So long as no Default --------------------------------- or Event of Default then exists or would result therefrom, the Borrower mayshall, in consultation with the Administrative Agent, have the right to request on one or more occasions on and after the Initial Borrowing Date and prior to March 31, 2000 that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Multiple Draw A Term Loan Commitments and/or Incremental B Term Loan Commitments and, subject to the terms and conditions contained in this Agreement, make Incremental Multiple Draw A Term Loans and/or Incremental B Term Loans pursuant thereto, as the case may be, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any request by written notice the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent an Incremental Term Loan Commitment Agreement as provided in clause (signed b) of this Section 1.14, such Lender shall not be obligated to fund any Incremental Multiple Draw A Term Loans and/or Incremental B Term Loans, as the case may be, (ii) any Lender (or, in the circumstances contemplated by clause (vi) below, any other Person which will qualify as an Eligible Transferee) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each provision of Incremental Term Loan Commitments pursuant to this Section 1.14 on a Responsible Officer given date shall be in a minimum aggregate amount (for all Lenders (including in the circumstances contemplated by clause (vi) below, Eligible Transferees who will become Lenders)) of at least $10,000,000, (iv) the aggregate amount of all Incremental Term Loan Commitments permitted to be provided pursuant to this Section 1.14 and the aggregate principal amount of all Incremental Term Loans permitted to be made pursuant to Sections 1.01(c) and (d) shall not, in either case, exceed $100,000,000, provided that if less than $50,000,000 of Incremental Term Loan Commitments in the aggregate are provided pursuant to this Section 1.14 by the earlier of (A) the 90th day after the Initial Borrowing Date and (B) the Syndication Date, then the aggregate amount of Incremental Term Loan Commitments permitted to be provided pursuant to this Section 1.14 shall be reduced by an amount equal to the difference between (x) $50,000,000 and (y) the aggregate amount of Incremental Term Loan Commitments so provided by such earlier date, (v) the relevant Incremental Term Loan Commitment Agreements shall specifically set forth whether the Incremental Term Loan Commitments in respect thereof shall constitute either Incremental Multiple Draw A Term Loan Commitments or Incremental B Term Loan Commitments, (vi) if, after the Borrower has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Term Loan Commitments pursuant to this Section 1.14, the Borrower has not received Incremental Term Loan Commitments in an aggregate amount equal to that amount of Incremental Term Loan Commitments which the Borrower desires to obtain pursuant to such request (as set forth in the notice provided by the Borrower as provided below), then the Borrower may, with the consent of the Borrower) from time to timeAdministrative Agent (which consent shall not be unreasonably withheld), request Incremental Term Loan Commitments, Commitments from Persons which would qualify as Eligible Transferees hereunder in an aggregate amount not equal to exceed $80,000,000 from one or more Incremental Term such deficiency (and with the fees to be paid to such Eligible Transferee to be no greater than that to be paid to the then existing Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of the providing Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereofCommitments), (ii) the date on which provided that any such Incremental Term Loan Commitments are requested -------- provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, and (vii) all actions taken by the Borrower pursuant to become effective (this Section 1.14 shall be done in coordination with the “Increased Amount Date”), (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)Administrative Agent.
(b) The Borrower At the time of any provision of Incremental Term Loan Commitments pursuant to this Section 1.14, (i) the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee (each an "Incremental Term Lender Loan Lender") which agrees to provide an Incremental Term Loan Commitment shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and substantially in the form of Exhibit C (with the effectiveness of such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Lender's Incremental Term Loan Commitment to occur upon delivery of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate payment of any fees (including, without limitation, any fees payable pursuant to that effect dated such date and executed by a Responsible Officer of the Borrowerclause (ii) below) required in connection therewith), (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by receive from the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with Borrower (or, to the extent agreed to by the applicable Borrower and the respective Incremental Term Lenders in the applicable Loan Lender, from such respective Incremental Assumption Agreement, junior toTerm Loan Lender) the existing payment of a non-refundable fee of $3,500 for each Lender (including any Eligible Transferee which becomes a Lender) providing a new (or increased) Incremental Term Loans, Loan Commitment and (iii) after giving effect the Borrower shall deliver to the Administrative Agent an opinion, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably satisfactory to the Administrative Agent and dated such date, covering matters similar to those set forth in the opinion of counsel delivered to the Administrative Agent on the Initial Borrowing Date pursuant to Section 5.03 and such other matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement, and (i) at such time Schedule I shall be deemed modified to reflect the Incremental Multiple Draw A Term Loan Commitments and/or Incremental B Term Loan Commitments, as the case may be, of such Incremental Term Loan Lenders and (ii) to the extent requested by such Incremental Term Loan Lenders, Multiple Draw A Term Notes and/or B Term Notes will be issued, at the Borrower's expense, to such Incremental Term Loan Commitments and the Loans Lenders, to be made thereunder and in conformity with the application requirements of Section 1.05 (with appropriate modifications) to the proceeds therefrom as if made and applied on such date, extent needed to reflect the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such new Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingCommitments.
(ec) Each In connection with each incurrence of Incremental Multiple Draw A Term Loans pursuant to Section 1.01(c) or Incremental B Term Loans pursuant to Section 1.01(d), the parties hereto Lenders and the Borrower hereby agrees that agree that, notwithstanding anything to the contrary contained in this Agreement, the Borrower and the Administrative Agent may take any and all action such actions as may be reasonably necessary to ensure that (i) all Incremental Lenders with outstanding Multiple Draw A Term Loans (other than Other Term Loans) in the form of additional and B Term Loans, when originally madeas the case may be, are included continue to participate in each Borrowing of outstanding Multiple Draw A Term Loans and B Term Loans (after giving effect to the incurrence of Incremental Multiple Draw A Term Loans or Incremental B Term Loans pursuant to Section 1.01(c) or (d), as the case may be) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate , --- ---- including by adding the Incremental Multiple Draw A Term Loans or the Incremental B Term Loans to ABR be so incurred to the then outstanding Borrowings of Multiple Draw A Term Loans reasonably required by or B Term Loans, as the Administrative Agent to effect the foregoing. If any case may be, on a pro rata --- ---- basis even though as a result thereof such new Incremental Multiple Draw A Term Loan is or Incremental B Term Loan, as the case may be (to the extent required to be allocated to an existing maintained as Eurodollar Loans), may effectively have a shorter Interest Period for a LIBO Rate Loanthan the existing Multiple Draw A Term Loans or B Term Loans, then as the interest rate thereon for such Interest Period case may be), and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, it is hereby agreed that (x) to the extent any Incremental existing Borrowings of Multiple Draw A Term Loans and B Term Loans that are not Other maintained as Eurodollar Loans are affected as a result thereof, any costs of the type described in Section 1.11 incurred by such Lenders in connection therewith shall be for the account of the Borrower or (y) to the extent the Incremental Multiple Draw A Term Loans and Incremental B Term Loans to be so incurred are added to the then outstanding Borrowings of Multiple A Term Loans or B Term Loans, as the scheduled amortization payments under Section 2.07(a) required case may be, which are maintained as Eurodollar Loans, the Lenders that have made such additional Incremental Multiple Draw A Term Loans or Incremental Multiple Draw B Term Loans, as the case may be, shall be entitled to be made after receive an effective interest rate on such additional Incremental Multiple Draw A Term Loans or Incremental B Term Loans, as the making case may be, as is equal to the Eurodollar Rate as in effect two Business Days prior to the incurrence of such additional Incremental Multiple Draw A Term Loans shall be ratably increased by or Incremental B Term Loans, as the aggregate principal amount case may be, plus the then Applicable Margin for such Tranche of such Incremental Term Loans.
Appears in 1 contract
Samples: Credit Agreement (Idt Corp)
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right to request, at any time after the Initial Borrowing Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to the Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent and the Borrower an Incremental Term Loan Commitment Agreement as provided in clause (signed by b) of this Section 2.14, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Eligible Transferee who will become a Responsible Officer Lender) may so provide an Incremental Term Loan Commitment without the consent of the Borrowerany other Lender, (iii) from time to time, request each Tranche of Incremental Term Loan Commitments, and all Incremental Term Loans to be made pursuant thereto, shall be denominated in an Dollars, (iv) the amount of each Tranche of Incremental Term Loan Commitments (whether constituting a new Tranche of Incremental Term Loans or being added to (and thereafter constituting a part of) a then outstanding Tranche of Term Loans) shall be in a minimum aggregate amount not to exceed $80,000,000 from one or more for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of Incremental Term Loans (including Eligible Transferees who will become Lenders) of at least $25,000,000 (or such lower amount as may be acceptable to the Administrative Agent) and in integral multiples of $5,000,000 in excess thereof (or such other integral multiple as may be acceptable to the Administrative Agent), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.14 and the aggregate principal amount of all Incremental Term Loans to be made pursuant thereto shall not exceed the Maximum Incremental Commitment Amount at such time, (vi) the up-front fees and, if applicable, any unutilized commitment fees and/or other fees, payable to each Incremental Term Loan Lender in respect of each Incremental Term Loan Commitment shall be separately agreed to by the Borrower and each such Incremental Term Loan Lender, (vii) each Tranche of Incremental Term Loans shall (A) have an Incremental Term Loan Maturity Date of no earlier than the Initial Term Loan Maturity Date, (B) have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Initial Term Loans and (C) be subject to the Applicable Margins as are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans; provided that, if the Applicable Margins for such Tranche of Incremental Term Loans (which, for such purposes only, shall be deemed to include all up-front or similar fees or original issue discount (amortized over the shorter of (x) the life of such Tranche of Incremental Term Loans and (y) four years) payable to all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans and any Eurodollar Rate floor or Base Rate floor applicable to such Incremental Term Loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans) determined as of the initial funding date for such Tranche of Incremental Term Loans exceeds the Applicable Margins (which may which, for such purposes only, shall be deemed to include all up-front or similar fees or original issue discount originally payable to all Lenders providing the Initial Term Loans or any existing LenderIncremental Term Loans theretofore incurred and any Eurodollar Rate floor or Base Rate floor applicable to the Initial Term Loans or such Incremental Term Loans) willing relating to provide the Initial Term Loans or such Incremental Term Loans in their own discretion. Such notice immediately prior to the effectiveness of the respective Incremental Term Loan Commitment Agreement by more than 0.50%, then the Applicable Margins relating to the Initial Term Loans and any Incremental Term Loans thereto incurred shall set forth be adjusted to be equal to the Applicable Margins (idetermined as provided above) relating to such Tranche of Incremental Term Loans minus 0.50%, (viii) the amount proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 8.08(c), (ix) each Incremental Term Loan Commitment Agreement shall specifically designate the Tranche or Tranches of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as the Initial Term Loans or any other then existing Tranche of not less than $10,000,000 and in integral multiples Term Loans) unless the requirements of $1,000,000 in excess thereofSection 2.14(c) are satisfied), (iix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the date other applicable Credit Documents and shall be secured by the Security Documents, and guaranteed under the Guaranties, on which a pari passu basis with all other Obligations secured by the Security Documents and guaranteed under the Guaranties, and (xi) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iiiCommitment Agreement as provided in Section 2.01(c) whether and such Incremental Term Loan Commitments are Loans shall thereafter be deemed to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Incremental Term Loans (“Other Term Loans”)under such Tranche for all purposes of this Agreement and the other applicable Credit Documents.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.14, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as Term Loan Commitment Agreement, with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein (and the making of the respective Incremental Term Loans thereunder) to occur on the date set forth in such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior Loan Commitment Agreement, which date in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans event shall be no earlier than the Maturity Datedate on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (iiix) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Incremental Commitment Requirements are satisfied, (including the Term Loans made on the Closing Date and y) all other Other Term Loans) conditions set forth in this Section 2.14 shall have been satisfied, and (ivz) all other conditions precedent that may be set forth in such Incremental Term Loan Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the Weighted Average Life to Maturity effectiveness of any Other each Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin Loan Commitment Agreement, and at such time, (which, for purposes of this sentence only, i) Schedule I shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued, at the Applicable Margin relating Borrower’s expense, to such Incremental Term Loan Lender in conformity with the requirements of Section 2.05.
(c) Notwithstanding anything to the contrary contained above in this Section 2.14, the Incremental Term Loans Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, C-1, C-2, C-3, etc.), provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, a then outstanding Tranche of Term Loans so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Maturity Date and shall have the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the new Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not Loans to be unreasonably withheld) and furnished made pursuant to the other parties hereto.
(d) Notwithstanding the foregoing, no such Incremental Term Loan Commitment Agreement shall become effective under this Section 2.20 unless have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Tranche of Term Loans to which such new Incremental Term Loans are being added (iwith the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche of Term Loans to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Term Loan Repayments of the respective Tranche of Term Loans proportionately); and
(iii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basisbasis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Lenders making new Incremental Term Loans add such Incremental Term Loans to ABR the then outstanding Borrowings of Eurodollar Loans reasonably required by of the Administrative Agent to respective Tranche of Term Loans, it is acknowledged that the effect the foregoing. If any thereof may result in such new Incremental Term Loan is Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to be allocated outstanding Eurodollar Loans of the respective Tranche and which will end on the last day of such Interest Period). In connection therewith, the Borrower hereby agrees to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Eurodollar Loans during an existing Interest Period for a LIBO Rate Loan, then on such basis as may be agreed by the interest rate thereon for such Interest Period Borrower and the other economic consequences thereof shall respective Lender or Lenders as may be as set forth provided in the applicable Incremental Assumption Agreement. In addition, to the extent any respective Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansLoan Commitment Agreement.
Appears in 1 contract
Samples: Credit Agreement (Town Sports International Holdings Inc)
Incremental Term Loan Commitments. (a) The So long as the Incremental Loan Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, each Borrower mayshall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Third Amendment Effective Date and prior to the date which is 12 months prior to the Tranche C Term Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to such Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice such Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 1.15, in an aggregate amount such Lender shall not be obligated to exceed $80,000,000 from one or more fund any Incremental Term Lenders Loans, (which may include ii) any existing Lender (including any Eligible Transferee who will become a Lender) willing to may so provide such an Incremental Term Loans Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be made available to a single Incremental Term Loan Borrower and shall be denominated in their own discretion. Such notice shall set forth Dollars, (iiv) the amount of the each Tranche of Incremental Term Loan Commitments being requested (which shall be in an a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of not less than Incremental Term Loans (including Eligible Transferees who will become Lenders) of at least (I) $10,000,000 25,000,000 and in integral multiples of $5,000,000 in excess thereof, in the case of Incremental Term Loans to be made pursuant to a new Tranche of Incremental Term Loans and (II) $5,000,000 and in integral multiples of $1,000,000 in excess thereof), in the case of Incremental Term Loans to be made pursuant to (and to constitute a part of) an existing Tranche of Incremental Term Loans or to the outstanding Tranche of Tranche C Term Loans as contemplated by the proviso in the first sentence of Section 1.15(c) below, (iiv) the date on which aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 1.15, when combined with the aggregate amount of all Incremental Multicurrency Facility Revolving Loan Commitments provided pursuant to Section 1.16 and the aggregate amount of all Incremental Dollar Facility Revolving Loan Commitments provided pursuant to Section 1.17, shall not exceed the Maximum Incremental Commitment Amount (it being understood and agreed, however, to the extent that any such Incremental Term Loan Commitments are requested to become effective (obtained but later expire, terminate or are voluntarily reduced in each case without being utilized, the “Increased Amount Date”), (iii) whether amount of such Incremental Term Loan Commitments are so expired, terminated or voluntarily reduced may again be available to be obtained under this Section 1.15 within the limits set forth herein), (vi) the up-front fees and, if applicable, any unutilized commitment fees and/or other fees, payable in respect of each Incremental Term Loan Commitment shall be separately agreed to by Holdings, the respective Incremental Term Loan Borrower and each Incremental Term Loan Lender (and with all such fees to be disclosed by Holdings to the Administrative Agent), (vii) each Tranche of Incremental Term Loans shall have (I) an Incremental Term Loan Maturity Date of no earlier than the Tranche C Term Loan Maturity Date and (II) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche C Term Loans, (viii) the proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 7.05(a), (ix) each Incremental Term Loan Commitment Agreement shall specifically designate, with the approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from other Term Loans) unless the requirements of Section 1.15(c) are satisfied), (x) all Incremental Term Loans (“Other and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by each such Security Agreement and guaranteed under each such Guaranty, and (xi) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loans”)Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitment Agreement as provided in Section 1.01(j) and such Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 1.15, the respective Incremental Term Loan Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an "Incremental Term Loan Lender") shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit R (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment of provided therein to occur on the date set forth in such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior Loan Commitment Agreement, which date in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans event shall be no earlier than the Maturity Datedate on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent), (iiix) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Incremental Loan Commitment Requirements are satisfied, (including the Term Loans made on the Closing Date and y) all other Other Term Loans) conditions set forth in this Section 1.15 shall have been satisfied, and (ivz) all other conditions precedent that may be set forth in such Incremental Term Loan Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the Weighted Average Life to Maturity effectiveness of any Other each Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin Loan Commitment Agreement, and at such time, (which, for purposes of this sentence only, i) Schedule I shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued at the Applicable Margin relating respective Incremental Term Loan Borrower's expense, to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 1.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 1.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, etc.), provided that, with the consent of the Administrative Agent, the parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Incremental Term Loans or to the effectiveness outstanding Tranche of Tranche C Term Loans, in either case so long as the applicable following requirements are satisfied:
(i) the Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, shall have the same Maturity Date and shall have the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Term Loan Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Term Loan Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 1.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basisbasis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Lenders making new Incremental Term Loans add such Incremental Term Loans to ABR the then outstanding Borrowings of Eurodollar Loans reasonably required by of such Tranche, it is acknowledged that the Administrative Agent effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to effect outstanding Eurodollar Loans of such Tranche and which will end on the foregoinglast day of such Interest Period). If any In connection therewith, the respective Incremental Term Loan is Borrower may agree, in the respective Incremental Term Loan Commitment Agreement, to be allocated to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Eurodollar Loans during an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for on such Interest Period and the other economic consequences thereof shall basis as may be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of agreed by such Incremental Term Loans shall be ratably increased by Loan Borrower and the aggregate principal amount of such Incremental Term Loansrespective Lender or Lenders.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The So long as no Default or Event of Default then exists or would result therefrom, the Borrower shall, in consultation with the Administrative Agent, have the right to request on one or more occasions on and after the Initial Borrowing Date and prior to the Incremental Term Loan Commitment Termination Date that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental A Term Loan Commitments and/or Incremental B Term Loan Commitments and, subject to the terms and conditions contained in this Agreement, make Incremental A Term Loans and/or Incremental B Term Loans pursuant thereto, as the case may be, it being understood and agreed, however, that (i) except as otherwise expressly agreed to in writing by any Lenders with the Borrower prior to the Initial Borrowing Date with respect to the Conspec Acquisition, no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent an Incremental Term Loan Commitment Agreement as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Incremental A Term Loans and/or Incremental B Term Loans, as the case may be, (ii) any Lender (or, in the circumstances contemplated by clause (vi) below, any other Person which will qualify as an Eligible Transferee) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each provision of Incremental Term Loan Commitments pursuant to this Section 1.15 on a given date shall be in a minimum aggregate amount (for all Lenders (including in the circumstances contemplated by clause (vi) below, Eligible Transferees who will become Lenders)) of at least $5,000,000, (iv) the aggregate amount of all Incremental Term Loan Commitments permitted to be provided pursuant to this Section 1.15 and the aggregate principal amount of all Incremental Term Loans permitted to be made pursuant to Sections 1.01(c) and (d) shall not, in either case, exceed $50,000,000 (PROVIDED that if the Conspec Acquisition is consummated on or prior to the Conspec Acquisition Termination Date and in accordance with the provisions of Section 8.14(b), such amount shall be increased by the principal amount of Incremental B Term Loans used to consummate the Conspec Acquisition and to pay the fees and expenses incurred in connection therewith (which amount, however, shall not exceed $23,500,000)), (v) the relevant Incremental Term Loan Commitment Agreements shall specifically set forth whether the Incremental Term Loan Commitments in respect thereof shall constitute either Incremental A Term Loan Commitments or Incremental B Term Loan Commitments, (vi) if, within 10 Business Days after the Borrower has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Term Loan Commitments pursuant to this Section 1.15 the Borrower has not received Incremental Term Loan Commitments in an aggregate amount equal to that amount of Incremental Term Loan Commitments which the Borrower desires to obtain pursuant to such request (as set forth in the notice provided by the Borrower as provided below), then the Borrower may, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed), request Incremental Term Loan Commitments from Persons which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency (and with the fees to be paid to such Eligible Transferee to be no greater than that to be paid to the then existing Lenders providing Incremental Term Loan Commitments), (vii) to the extent that any Incremental Term Loans are to be incurred on or prior to the Conspec Acquisition Termination Date to finance the Conspec Acquisition, such Incremental Term Loans shall be Incremental B Term Loans, (viii) prior to any Incremental A Term Loan Borrowing Date or any Incremental B Term Loan Borrowing Date, the Borrower shall have certified to the Administrative Agent that the aggregate principal amount of any Incremental Term Loan being incurred is permitted to be incurred under, and in accordance with, the Senior Subordinated Note Indenture (including, without limitation, by written notice providing to the Administrative Agent (signed by a Responsible Officer x) an officer's certificate of the Borrower's chief financial officer or other Authorized Financial Officer demonstrating (in reasonable detail) from time to time, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) that the amount incurrence of the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (ii) the date Loans on which any such Incremental Term Loan Commitments are requested Borrowing Date may be incurred in accordance with, and will not violate the provisions of, the Senior Subordinated Note Indenture (including, to become effective the extent applicable, the proviso to Section 4.09 of the Senior Subordinated Note Indenture) and (y) the “Increased Amount Date”officers' certificate referred to in clause (vi) of the definition of "Senior Debt" set forth in the Senior Subordinated Note Indenture), although the provisions of this clause (iiiviii) whether such shall not apply to any Incremental B Terms Loans incurred on or prior to the Conspec Acquisition Termination Date to finance the Conspec Acquisition, (ix) the proceeds of all Incremental Term Loan Commitments are Loans shall be used to finance Permitted Acquisitions and to pay the fees and expenses incurred in connection therewith, and (x) all actions taken by the Borrower pursuant to this Section 1.15 shall be Term Loan Commitments or commitments to make term loans done in coordination with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)Administrative Agent.
(b) The Borrower At the time of any provision of Incremental Term Loan Commitments pursuant to this Section 1.15, (i) the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee (each an "Incremental Term Lender Loan Lender") which agrees to provide an Incremental Term Loan Commitment shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and substantially in the form of Exhibit C (appropriately completed), with the effectiveness of such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Lender's Incremental Term Loan Commitment to occur upon delivery of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, the payment of any fees (including, without limitation, any fees payable pursuant to clause (ii) below) required in connection therewith and the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess consummation of the pro rata share of such series relative Permitted Acquisition to all Term Loans (including the Term Loans made on the Closing Date and all other Other financed with respective Incremental Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by receive from the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with Borrower (or, to the extent agreed to by the applicable Borrower and the respective Incremental Term Lenders in the applicable Loan Lender, from such respective Incremental Assumption Agreement, junior toTerm Loan Lender) the existing Term Loans, payment of a non-refundable fee of $3,500 for each Eligible Transferee which becomes a Lender pursuant to this Section 1.15 and (iii) after giving effect the Borrower shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Initial Borrowing Date pursuant to Section 5A.03 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably request, although the provisions of this clause (iii) shall not apply to any Incremental B Term Loans incurred on or prior to the Conspec Acquisition Termination Date to finance the Conspec Acquisition. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement, and (i) at such time Annex I shall be deemed modified to reflect the Incremental A Term Loan Commitments and/or Incremental B Term Loan Commitments, as the case may be, of such Incremental Term Loan Lenders and (ii) to the extent requested by such Incremental Term Loan Lenders, A Term Notes and/or B Term Notes will be issued, at the Borrower's expense, to such Incremental Term Loan Commitments and the Loans Lenders, to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the new Incremental Term Loans made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to by such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingLenders.
(ec) Each In connection with each incurrence of Incremental A Term Loans pursuant to Section 1.01(c) or Incremental B Term Loans pursuant to Section 1.01(d), the parties hereto Lenders and the Borrower hereby agrees that agree that, notwithstanding anything to the contrary contained in this Agreement, the Borrower and the Administrative Agent may take any and all action such actions as may be reasonably necessary to ensure that (i) all Incremental Lenders with outstanding A Term Loans (other than Other Term Loans) in the form of additional and B Term Loans, when originally madeas the case may be, are included continue to participate in each Borrowing of outstanding A Term Loans and B Term Loans (after giving effect to the incurrence of Incremental A Term Loans or Incremental B Term Loans pursuant to Section 1.01(c) or (d), as the case may be) on a pro rata PRO RATA basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate , including by adding the Incremental A Term Loans or the Incremental B Term Loans to ABR be so incurred to the then outstanding Borrowings of A Term Loans reasonably required by or B Term Loans, as the Administrative Agent to effect the foregoing. If any case may be, on a PRO RATA basis even though as a result thereof such new Incremental A Term Loan is or Incremental B Term Loan, as the case may be (to the extent required to be allocated to an existing maintained as Eurodollar Loans), may effectively have a shorter Interest Period for a LIBO Rate Loanthan the then outstanding Borrowings of A Term Loans or B Term Loans, then as the interest rate thereon for such Interest Period case may be, and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, it is hereby agreed that (x) to the extent any Incremental then outstanding Borrowings of A Term Loans or B Term Loans that are not Other maintained as Eurodollar Loans are affected as a result thereof, any costs of the type described in Section 1.11 incurred by such Lenders in connection therewith shall be for the account of the Borrower or (y) to the extent the Incremental A Term Loans and Incremental B Term Loans to be so incurred are added to the then outstanding Borrowings of A Term Loans or B Term Loans, as the scheduled amortization payments under Section 2.07(a) required case may be, which are maintained as Eurodollar Loans, the Lenders that have made such additional Incremental A Term Loans or Incremental B Term Loans, as the case may be, shall be entitled to be made after receive an effective interest rate on such additional Incremental A Term Loans or Incremental B Term Loans, as the making case may be, as is equal to the Eurodollar Rate as in effect two Business Days prior to the incurrence of such additional Incremental A Term Loans shall be ratably increased by the aggregate principal amount of such or Incremental B Term Loans, as the case may be, plus the then Applicable Eurodollar Rate Margin for such Tranche of Term Loans until the end of the respective Interest Period or Interest Periods with respect thereto.
Appears in 1 contract
Samples: Credit Agreement (Symons Corp)
Incremental Term Loan Commitments. (a) The So long as the Incremental Loan Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, Silgan shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 1.14, but without requiring the consent of any of the Agents (except as otherw4ise provided in this Section 1.14) or the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Incremental Commitment Termination Date for the respective Tranche of Incremental Term Loans that one or more Lenders (and/or one or more other Persons which are Eligible Transferees which will become Lenders) provide to the Incremental Term Loan Borrower mayfor the respective Tranche of Incremental Term Loan Commitments under such Tranche of Incremental Term Loans as designated in the respective Incremental Term Loan Commitment Agreement and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; provided that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to Silgan, the respective Foreign Incremental Term Loan Borrower (if applicable) and the Administrative Agent an Incremental Term Loan Commitment Agreement as provided in clause (b) of this Section 1.14, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of the Administrative Agent or any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be made available to a single Incremental Term Loan Borrower and shall be denominated in a single Currency which, in the case of an Other Alternate Currency, shall be approved by written notice the Administrative Agent, (iv) the amount of each Tranche of Incremental Term Loan Commitments shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of Incremental Term Loans (including Eligible Transferees who will become Lenders) of at least $50,000,000 (or the Dollar Equivalent thereof as determined at the time that Incremental Term Loan Commitments are obtained) (or such lesser amount as is acceptable to the Administrative Agent Agent), (signed by a Responsible Officer v) the aggregate amount of the Borrower) from time to time, request all Incremental Term Loan CommitmentsCommitments permitted to be provided pursuant to this Section 1.14, in an when combined with the aggregate amount of Incremental Revolving Loan Commitments permitted to be provided pursuant to Section 1.15, shall not exceed the sum of (I) $750,000,000 plus (II) the aggregate amount of any reductions to exceed $80,000,000 from one the Total Revolving Loan Commitment made pursuant to Section 3.02 (or more the Dollar Equivalent thereof as determined at the time that such Incremental Term Lenders Loan Commitments are obtained) (which it being understood and agreed, however, to the extent that any such Incremental Term Loan Commitments are obtained but later expire, terminate or are voluntarily reduced in each case without being utilized, the amount of such Incremental Term Loan Commitments so expired, terminated or voluntarily reduced may again be available to be obtained under this Section 1.14 within the limits set forth herein), (vi) the Applicable Margin, the up-front fees and, if applicable, any unutilized commitment fees and/or other fees, payable in respect of each Incremental Term Loan Commitment shall be separately agreed to by Silgan, the respective Foreign Incremental Term Loan Borrower (if applicable) and each Incremental Term Loan Lender (and with all such fees to be disclosed by Silgan to the Administrative Agent), (vii) each Tranche of Incremental Term Loans shall have (I) an Incremental Term Loan Maturity Date of no earlier than the Initial Term Loan Maturity Date and (II) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the US A Term Loans, Canadian A Term Loans and Euro A Term Loans (determined on a weighted average basis for all such Term Loans), (viii) in the event that the Applicable Margin (which, for such purposes only, shall be deemed to include any existing Lenderupfront facility fees, original issue discount, interest rate bench xxxx floors with respect to the applicable Term Loans or prepayment fees and with such factors to be equated to interest rates in a manner determined by the Administrative Agent and consistent with generally accepted financial practices, based on, where applicable, a remaining life-to-maturity of the lesser of four years and the remaining life-to-maturity of such Incremental Term Loans, but exclusive of (x) willing any ticking fee in the case of a delayed draw Incremental Term Loan Commitment and (y) any arrangement, structuring or other fees payable in connection therewith that are not shared with all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans) of the Incremental Term Loans provided pursuant to provide such Incremental Term Loan Commitment exceeds by more than 50 basis points the effective Applicable Margin (as so determined by the Administrative Agent as set forth above) at any level then in effect for any Tranche of Term Loans that are outstanding immediately prior to giving effect to the incurrence of such Incremental Term Loans in their own discretion. Such notice (the amount of such excess, the “Yield Differential”), the Applicable Margin with respect to all outstanding US A Term Loans, Canadian A Term Loans and Euro A Term Loans shall set forth be automatically adjusted at each applicable level by the Yield Differential less 50 basis points effective upon the making of such Incremental Term Loans, (iix) the amount proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 6.10, (x) each Incremental Term Loan Commitment Agreement shall specifically designate, with the approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans) unless the requirements of $1,000,000 in excess thereofSection 1.14(c) are satisfied), (iixi) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) (including, without limitation, Incremental Term Loans incurred by a Foreign Incremental Term Loan Borrower) shall be Obligations under this Agreement and the date other applicable Credit Documents and shall be secured by the US Collateral, and guaranteed under the US Borrowers/Subsidiaries Guaranty, on which a pari passu basis with all other Term Loans, (xii) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by a Foreign Incremental Term Loan Borrower also shall be secured and guaranteed to the extent required by Section 5.03(b), and (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in Section 1.01(d) and such Loans shall thereafter be deemed to become effective (the “Increased Amount Date”), (iii) whether such be Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from Loans under such Tranche for all purposes of this Agreement and the Term Loans (“Other Term Loans”)other applicable Credit Documents.
(b) The At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 1.14, Silgan, the respective Foreign Incremental Term Loan Borrower (if applicable), each other Credit Party, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to Silgan, the respective Foreign Incremental Term Loan Borrower (if applicable) and the Administrative Agent an Incremental Assumption Agreement and such other documentation as Term Loan Commitment Agreement, appropriately completed (with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment of provided therein to occur on the date set forth in such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior Loan Commitment Agreement, which date in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans event shall be no earlier than the Maturity Datedate on which (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Commitment Effectiveness Requirements have been satisfied, (iii) the terms applicable to each series of Other Term Loans all conditions set forth in this Section 1.14 shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) have been satisfied and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall all other conditions precedent that may be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing set forth in such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating Agreement shall have been satisfied). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loans Loan Commitment Agreement and, at such time, Schedule I shall be deemed modified to reflect the Incremental Term Loan Commitments of such Incremental Term Loan Lenders.
(c) Notwithstanding anything to the contrary contained above in this Section 1.14, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, etc.), provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, shall be denominated in the same Currency, shall have the same Maturity Date and shall have the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Term Loan Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Term Loan Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Term Loan Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 1.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basisbasis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche, and so that the existing Lenders with respect to such Tranche continue to have the same participation (by amount) in each Borrowing as they had before the making of the new Term Loans of such Tranche. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply Lenders making new Incremental Term Loans add such Incremental Term Loans to any conversion the then outstanding Borrowings of LIBO Euro Rate Loans or B/A Discount Rate Loans, as the case may be, of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to ABR outstanding Euro Rate Loans reasonably required by or B/A Discount Rate Loans, as the Administrative Agent to effect case may be, of such Tranche and which will end on the foregoinglast day of such Interest Period). If any In connection therewith, the respective Incremental Term Loan is Borrower may agree, in the respective Incremental Term Loan Commitment Agreement, to be allocated to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Euro Rate Loans or B/A Discount Rate Loans during an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for on such Interest Period and the other economic consequences thereof shall basis as may be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of agreed by such Incremental Term Loans shall be ratably increased by Loan Borrower and the aggregate principal amount of such Incremental Term Loansrespective Lender or Lenders.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The On or before the Facility Maturity Date, a Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request incremental term loan commitments (the “Incremental Term Loan Commitments, ”) in an aggregate amount at such time not to exceed $80,000,000 the Incremental Amount at such time from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion; provided, that each Incremental Term Lender, if not already an Eligible Assignee, shall be subject to the approval of the Administrative Agent and the Borrowers (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the Borrower, (ii) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate a minimum amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereofor equal to the remaining Incremental Amount), (iiiii) the date on which such Incremental Term Loan Commitments are requested to become effective (the an “Increased Amount Date”), ) and (iiiiv) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Joinder Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Joinder Agreement shall specify the terms of the applicable Incremental Term LoansLoans to be made thereunder; provided that that, without the prior written consent of the Required Lenders, (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Facility Maturity Date, (iiiii) the terms applicable average life to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life average life to Maturity maturity of the Term existing Loans and (iii) such Other Loans shall not be subject to any amortization that at any time is proportionally greater than the amortization of the existing Loans. If , and provided further that the interest rate margin in respect of any Other Loan may exceed the Applicable Margin for the existing Loans by no more than ½ of 1% (which, for purposes it being understood that a portion of this sentence only, shall be deemed to include all upfront or similar fees or any interest margin may take the form of original issue discount payable (“OID”), with ODD being equated to all Lenders providing the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), or if it exceeds such Term LoansApplicable Margin by more than such amount, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Loan (giving effect to any OLD issued in connection with such Other Loan) is no more than 1/2 of 1%, as applicable) relating to any Incremental Term Loan Commitment exceeds , higher than the Applicable Margin relating to for the Term Loans or the Credit-Linked Deposits, existing Loans. The Administrative Agent shall promptly notify each Lender as the case may be, immediately prior to the effectiveness of the applicable each Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Joinder Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Joinder Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f)the last sentence of subsection 11.1. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 subsection 4.16 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 subsection 6.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer financial officer of the applicable Borrower, ; (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Joinder Agreement and, to the extent required by the Administrative Agent, and consistent with those delivered on the Closing Date under Section 4.01 subsection 6.1 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure ensure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, ; and (iii) after giving pro forma effect to the making of any such Incremental Term Loan Commitments Loans and any permitted acquisition consummated in connection therewith or any permitted disposition (including adjustment for the Loans items referred to be made thereunder and in the application of the proceeds therefrom as if made and applied on such dateproviso to subsection 8.9), the Consolidated Leverage Ratio would be no greater than Borrowers and their Subsidiaries are in pro forma compliance with the Consolidated Leverage Ratio financial covenants set forth in subsection 8.9 and subsection 8.10 as of the Closing Date and last day of the most recent four consecutive fiscal quarters of the Borrowers for which financial statements have been delivered pursuant to subsection 7.1 (iv) both before and after giving effect to calculated as if such Incremental Term Loan Commitments Loans had been incurred, and such permitted acquisition or disposition, if any, had been consummated, on the Loans to be made thereunder and the application first day of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingperiod).
(ed) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees basis and the Borrowers agree that Section 2.16 subsection 4.13 shall apply to any conversion of LIBO Rate Eurodollar Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.)
Incremental Term Loan Commitments. (a) The Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, Commitments in an aggregate amount not to exceed $80,000,000 from one or more the Incremental Amount; provided that (A) the Borrower shall first seek Incremental Term Lenders Loan Commitments from the existing Lenders, (which may include B) any existing Lender) willing Lender approached to provide any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loan Commitment, (C) if the existing Lenders decline to provide the full amount of such Incremental Term Loan Commitments, the Borrower may then seek Incremental Term Loan Commitments on the same terms from other persons and (D) any person that the Borrower proposes to become an Incremental Term Lender, if such person is not then an existing Lender, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld); provided, further, that the foregoing requirements shall not apply to any Term B-2 Loans in their own discretion(including the Incremental Term B-2 Loans). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate minimum increments of $5,000,000 and a minimum amount of not less than $10,000,000 10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent) and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (effective. Notwithstanding anything in this Agreement to the “Increased Amount Date”)contrary, (iii) whether such any Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the and Incremental Term Loans (“Other established and incurred after the Fourth Incremental Assumption and Amendment Agreement Effective Date shall be in the form of additional Term B-2 Loans with terms identical to the existing Term B-2 Loans”).
(b) The terms and conditions of any Incremental Term Loan Commitments and the Incremental Term Loans shall be governed by this Agreement unless otherwise provided in the applicable Incremental Assumption Agreement. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and clause (c) of Section 4.02 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, ; (ii) the Borrower shall have delivered to the Administrative Agent shall have received such customary legal opinions, board resolutions resolutions, secretary’s certificates, officer’s certificates and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans are secured by the Collateral ratably with (orthe Term B Loans, to the extent agreed by Term B-1 Loans and the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B-2 Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the making of Incremental Term Loans thereunder and the transactions to be made thereunder on the date of effectiveness thereof and assuming that all applicable Incremental Term Loan Commitments are fully drawn, the application Borrower shall be in Pro Forma Compliance for the Test Period most recently ended (it being understood and agreed that proceeds of such Incremental Term Loans incurred at such time shall not be netted against the applicable amount of Consolidated Debt for purposes of such calculation of the proceeds therefrom as if made and applied on such date, the Consolidated Net Total Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and at such time), (iv) both before the proceeds of any Incremental Term Loan Commitment shall be used solely to finance Permitted Business Acquisitions, Investments (so long as the consideration for such Investment constitutes Collateral) and after giving effect to capital expenditures in each case in accordance with this Agreement and (v) any fees and expenses owing in respect of such Incremental Term Loan Commitments and Incremental Term Loans owed to the Loans to be made thereunder Administrative Agent and the application of Incremental Term Lenders hereunder or under the proceeds therefrom as if made and applied on such date, no Default or Event of Default applicable Incremental Assumption Agreement shall have occurred been paid; provided, however, that the foregoing clauses (c)(i) through (c)(v) shall not be applicable with respect to (x) the Term B-1 Loan Commitments made on the First Incremental Assumption and be continuingAmendment Agreement Effective Date, the terms and conditions with respect to which are set forth in the First Incremental Assumption and Amendment Agreement or (y) the Term B-2 Loan Commitments made on or after the Fourth Incremental Assumption and Amendment Agreement Effective Date, the terms and conditions with respect to which are set forth in the Fourth Incremental Assumption and Amendment Agreement (or, in the case of Term B-2 Loan Commitments established after the Fourth Incremental Assumption and Amendment Agreement Effective Date, the applicable Incremental Assumption Agreement).
(ed) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If .
(e) Notwithstanding anything in the foregoing to the contrary, (i) for the purpose of determining the number of outstanding Eurocurrency Borrowings upon the incurrence of any Incremental Term Loans, to the extent the last date of Interest Periods for multiple Eurocurrency Borrowings under the Term Facilities fall on the same day, such Eurocurrency Borrowings shall be considered a single Eurocurrency Borrowing and (ii) the initial Interest Period with respect to any Eurocurrency Borrowing of Incremental Term Loans may, at the Borrower’s option, be of a duration of a number of Business Days that is less than one month, and the Adjusted LIBO Rate with respect to such initial Interest Period shall be the same as the Adjusted LIBO Rate applicable to any then-outstanding Eurocurrency Borrowing as the Borrower may direct, so long as the last day of such initial Interest Period is the same as the last day of the Interest Period with respect to such outstanding Eurocurrency Borrowing.
(f) Each of the parties hereto hereby agrees that the Term B-1 Loan is Commitments made on the First Incremental Assumption and Amendment Agreement Effective Date shall be permitted to be allocated incurred hereunder pursuant to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period terms of the First Incremental Assumption and Amendment Agreement.
(g) Each of the other economic consequences thereof parties hereto hereby agrees that the Term B-2 Loan Commitments made on or after the Fourth Incremental Assumption and Amendment Agreement Effective Date shall be as set forth permitted to be incurred hereunder pursuant to the terms of the Fourth Incremental Assumption and Amendment Agreement (or, in the case of Term B-2 Loan Commitments established after the Fourth Incremental Assumption and Amendment Agreement Effective Date, the applicable Incremental Assumption Agreement) and this Section 2.21. In addition, Notwithstanding anything else contained herein to the extent any contrary, the Borrower shall not be permitted to request additional Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made Loan Commitments after the making of such Fourth Incremental Assumption and Amendment Agreement Effective Date other than Term B-2 Loan Commitments (i) with identical pricing and terms as the Incremental Term Loans shall be ratably increased by B-2 Commitments established on the Fourth Incremental Assumption and Amendment Agreement Effective Date, (ii) in an aggregate principal amount of such not to exceed $20,000,000, (iii) provided by an Incremental Term Loans.B-2 Lender and (iv) subject to the Subordination Terms..
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (Redbox Entertainment Inc.)
Incremental Term Loan Commitments. (a) The Borrower mayNew Holdings shall have the right, by written notice to in consultation and coordination with the Administrative Agent (signed by a Responsible Officer as to all of the Borrower) matters set forth below in this subsection 2.4, but without requiring the consent of any of the Lenders, to request at any time and from time to time, request time that one or more Lenders (and/or one or more other Persons which are Eligible Assignees and which will become Lenders (it being understood that New Holdings shall have no obligation to seek commitments in respect of Incremental Term Loans from existing Lenders)) provide Incremental Term Loan CommitmentsCommitments to the Borrowers and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Commitment Agreement, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by New Holdings, (ii) any Lender (including any Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Transferees who will become Lenders) of at least $5,000,000 (or, if less, the remaining available amount), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this subsection 2.4 after the Effective Date and all Indebtedness incurred pursuant to subsection 8.2(h) shall not exceed at the time of incurrence thereof the sum of (x) $35,000,000, plus (y) [reserved], plus (z) an unlimited amount (a “Ratio-Based Incremental Facility”) so long as, in the case of this clause (z) only, (1) in the case of Indebtedness secured by Liens on the Collateral that rank pari passu with the Liens securing the Initial Term Loans, on a pro forma basis, the Consolidated First Lien Net Leverage Ratio is (A) less than or equal to 6.39 to 1.00 as of the last day of the most recently ended Test Period and (B) less than or equal to the Consolidated First Lien Net Leverage Ratio as of the last day of the most recently ended Test Period, (2) in the case of Indebtedness secured by Liens on the Collateral that rank junior to the Liens securing the Initial Term Loans, on a pro forma basis, the Consolidated Total Net Leverage Ratio is (A) less than or equal to 6.67 to 1.00 as of the last day of the most recently ended Test Period and (B) less than or equal to the Consolidated Total Net Leverage Ratio as of the last day of the most recently ended Test Period, (3) [reserved], (4) [reserved] and (5) the proceeds of any such Indebtedness may only be used for Permitted Acquisitions, (vi) each Incremental Term Loan Commitment Agreement shall specifically designate, with the approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofsubsection 2.4(c) are satisfied), (iivii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other then outstanding Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of the preceding clause (v)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by subsection 4.6; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a weighted average life to maturity of no less than the weighted average life to maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest weighted average life to maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans (or in the case of subsection 8.2(h), Permitted Pari Passu Notes) may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement (or in the case of Permitted Pari Passu Notes, the indenture or other definitive documentation in respect thereof); provided, however, that if the Effective Yield for any such Incremental Term Loans or Permitted Pari Passu Notes incurred pursuant to subclause 8.2(h) exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date to a margin per annum such that the Effective Yield applicable to such Incremental Term Loans or Permitted Pari Passu Notes is 0.50% per annum higher than the Effective Yield applicable to the then outstanding Initial Term Loans (as reasonably determined by the Administrative Agent in good faith); provided, further, (A) if any Incremental Term Loans, which are secured by a Lien on which the Collateral ranking pari passu with the Lien on the Collateral securing the Indebtedness hereunder, include a Term SOFR or ABR floor that is greater than the Term SOFR or ABR floor applicable to the existing Initial Term Loans, such differential between interest rate floors shall be included in the calculation of Effective Yield but only to the extent an increase in the Term SOFR or ABR floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder and (B) to the extent any increase in the Effective Yield on the existing Initial Term Loans is required pursuant to the immediately preceding proviso, such increase shall be effected first through an increase in the Term SOFR or ABR floor applicable to such existing Initial Term Loans in an amount equal to the amount of the differential indicated in the foregoing clause (A) with any remaining required increase effected pursuant to an increase the Applicable Margin to the extent required by the definition thereof, and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II) and clause (ix) below) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agent, (viii) [reserved], (ix) Incremental Term Loans (and all interest, fees and other amounts payable thereon) may only be incurred by the Borrowers and shall be Obligations of the Borrowers under this Agreement and the other applicable Loan Documents and shall be secured by the Security Documents, and guaranteed under each relevant guarantee, on a pari passu or junior basis with all other Term Loans secured by the Security Documents and guaranteed under each such and Guarantee and Collateral Agreement and no Incremental Term Loans shall have any obligors, guarantors or collateral other than those applicable to the other Term Loans, (x) each Lender (including any Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in subsection 2. 1(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Loan Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this subsection 2.4, the Borrowers, the Administrative Agent and each such Lender or other Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit N (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this subsection 2.4 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loans) Loan Commitment Agreement, and (iv) at such time, to the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to extent requested by any Incremental Term Loan Commitment exceeds Lender, Notes will be issued at the Applicable Margin relating Borrowers’ expense to such Incremental Term Loan Lender, to be in conformity with the requirements of subsection 4.2(e) (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this subsection 2.4, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrowers, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same amortization payment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each amortization payment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining amortization payment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately;
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated subsection 4.7, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to subsection 2.1(b)) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by ; and
(iv) the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making Effective Yield of such Incremental Term Loans shall be ratably increased by would not result in an increase in the aggregate principal amount of Applicable Margins for the Initial Term Loans (assuming for this purpose, that such Incremental Term Loans had been incurred as a new Tranche of Incremental Term Loans). To the extent the provisions of the preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of Term SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Term SOFR Loans of such Tranche and which will end on the last day of such Interest Period). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The On or before the Facility Maturity Date, a Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request incremental term loan commitments (the “Incremental Term Loan Commitments, ”) in an aggregate amount at such time not to exceed $80,000,000 the Incremental Amount at such time from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion; provided, that each Incremental Term Lender, if not already an Eligible Assignee, shall be subject to the approval of the Administrative Agent and the Borrowers (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the Borrower, (ii) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate a minimum amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereofor equal to the remaining Incremental Amount), (iiiii) the date on which such Incremental Term Loan Commitments are requested to become effective (the an “Increased Amount Date”), ) and (iiiiv) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Joinder Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Joinder Agreement shall specify the terms of the applicable Incremental Term LoansLoans to be made thereunder; provided that that, without the prior written consent of the Required Lenders, (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Facility Maturity Date, (iiiii) the terms applicable average life to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life average life to Maturity maturity of the Term existing Loans and (iii) such Other Loans shall not be subject to any amortization that at any time is proportionally greater than the amortization of the existing Loans. If , and provided further that the interest rate margin in respect of any Other Loan may exceed the Applicable Margin for the existing Loans by no more than 1/2 of 1% (which, for purposes it being understood that a portion of this sentence only, shall be deemed to include all upfront or similar fees or any interest margin may take the form of original issue discount payable (“OID”), with OID being equated to all Lenders providing the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), or if it exceeds such Term LoansApplicable Margin by more than such amount, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Loan (giving effect to any OID issued in connection with such Other Loan) is no more than 1/2 of 1%, as applicable) relating to any Incremental Term Loan Commitment exceeds , higher than the Applicable Margin relating to for the Term Loans or the Credit-Linked Deposits, existing Loans. The Administrative Agent shall promptly notify each Lender as the case may be, immediately prior to the effectiveness of the applicable each Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Joinder Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Joinder Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f)the last sentence of subsection 11.1. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 subsection 4.16 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 subsection 6.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer financial officer of the applicable Borrower, ; (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Joinder Agreement and, to the extent required by the Administrative Agent, and consistent with those delivered on the Closing Date under Section 4.01 subsection 6.1 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure ensure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, ; and (iii) after giving pro forma effect to the making of any such Incremental Term Loan Commitments Loans and any permitted acquisition consummated in connection therewith or any permitted disposition (including adjustment for the Loans items referred to be made thereunder and in the application of the proceeds therefrom as if made and applied on such dateproviso to subsection 8.9), the Consolidated Leverage Ratio would be no greater than Borrowers and their Subsidiaries are in pro forma compliance with the Consolidated Leverage Ratio financial covenants set forth in subsection 8.9 and subsection 8.10 as of the Closing Date and last day of the most recent four consecutive fiscal quarters of the Borrowers for which financial statements have been delivered pursuant to subsection 7.1 (iv) both before and after giving effect to calculated as if such Incremental Term Loan Commitments Loans had been incurred, and such permitted acquisition or disposition, if any, had been consummated, on the Loans to be made thereunder and the application first day of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingperiod).
(ed) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees basis and the Borrowers agree that Section 2.16 subsection 4.13 shall apply to any conversion of LIBO Rate Eurodollar Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.)
Incremental Term Loan Commitments. (a) The So long as the Syndication Date has occurred and no Default or Event of Default then exists or would result therefrom, the Parent Borrower mayhave the right to request on one or more occasions on and after the Closing Date that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Term Loan Commitments under any existing Tranche or one or more additional Tranches and, subject to the terms and conditions contained in this Agreement, make Incremental Term Loans pursuant thereto, it being understood and agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Parent Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request and Parent Borrower an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this subsection 2.5, such Lender shall not be obligated to fund any Incremental Term Loans,
(ii) any Lender (or, in the circumstances contemplated by clause (vii) below, any other Person) may so provide an Incremental Term Loan Commitment without the consent of any other Lender,
(iii) each provision of Incremental Term Loan Commitments pursuant to this subsection 2.5 on a given date shall be in a minimum aggregate amount (for all Lenders (including in the circumstances contemplated by clause (vii) below, any other Person who will become Lenders)) of at least $25,000,000,
(iv) the aggregate amount of all Incremental Term Loan Commitments permitted to be provided pursuant to this subsection 2.5 shall not to exceed $80,000,000 from one or more 300,000,000,
(v) the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice Loan Commitment Agreement shall specifically set forth (i) the amount Tranche of the Incremental Term Loan Commitments being provided thereunder,
(vi) each Lender agreeing to provide an Incremental Term Loan Commitment under a Tranche, shall make Incremental Term Loans under the Tranche specified in the relevant Incremental Term Loan Commitment Agreement pursuant to subsection 2.1(b) and such Incremental Term Loans shall thereafter be deemed to be Term Loans under the relevant Tranche for all purposes of this Agreement and the other Loan Documents,
(vii) if, within 5 Business Days after the Parent Borrower has requested (which shall be the then existing Lenders to provide Incremental Term Loan Commitments pursuant to this subsection 2.5 the Parent Borrower has not received Incremental Term Loan Commitments in an aggregate amount equal to that amount of Incremental Term Loan Commitments which the Parent Borrower desires to obtain pursuant to such request (as set forth in the notice provided by the Parent Borrower as provided below the Administrative Agent, in consultation with the Parent Borrower, will use its reasonable best efforts to arrange for other Persons to become Lenders or to provide Incremental Term Loan Commitments, as applicable, hereunder and to issue commitments in an amount equal to the amount of the increase in the Incremental Term Loan Commitments requested by the Parent Borrower, as the case may be, and not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereofaccepted by the existing Lenders (each Person issuing, or Lender increasing, its Commitment, an “Additional Commitment Lender”), provided, however, any Additional Commitment Lender which is not an existing Lender shall be subject to the approval of the Administrative Agent and the Parent Borrower,
(iiviii) no Incremental Term Loan may be incurred unless on a pro forma basis after giving effect to the date on which incurrence of such Incremental Term Loan Commitments are requested and the application of the proceeds thereof the consolidated Total Leverage Ratio for the then most recently ended period of four consecutive fiscal quarters is not greater than 4.00:1.00 and the Consolidated Secured Leverage Ratio for the then most recently ended period of four consecutive fiscal quarters is not greater than 3.00:1.00,
(ix) if Incremental Term Loans incurred pursuant to become effective (the “Increased Amount Date”), (iii) whether such an Incremental Term Loan Commitments Commitment are to be under a New Tranche, the Applicable Margin for such New Tranche of Incremental Term Loans, the Incremental Term Loan Commitments or commitments Maturity Date for such New Tranche and the scheduled repayments for such New Tranche and the other terms of such New Tranche shall be set forth in the related Incremental Term Loan Commitment Agreement and shall be reasonably satisfactory in all respects to make term loans the Administrative Agent,
(x) all actions taken by the Parent Borrower pursuant to this subsection 2.5 shall be done in consultation with pricing and/or amortization terms different from the Administrative Agent, and
(xi) no Tranche of Incremental Term Loans (“Other shall have a Maturity Date prior to the Initial Term Loans”)Loan Maturity Date.
(b) The Borrower At the time of any provision of Incremental Term Loan Commitments pursuant to this subsection 2.5,
(i) the Parent Borrower, the Administrative Agent and each such Lender or other Person (each an “Incremental Lender”) which agrees to provide an Incremental Term Lender Loan Commitment shall execute and deliver to the Administrative Agent and the Parent Borrower an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment Agreement substantially in the form of Exhibit B hereto (appropriately completed) pursuant to which the respective Incremental Term Loan Commitments shall be provided, with the effectiveness of such Incremental Term Lender. Each ’s Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as Commitment to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made occur on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to date set forth in such Incremental Term Loan Commitment minus 0.25%.
(c) Each of Agreement and the parties hereto hereby agrees that, upon the effectiveness payment of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for fees required in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.connection therewith,
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required evidence reasonably satisfactory to it that the additional obligations to be incurred pursuant to the Incremental Term Loans are permitted by the relevant Incremental Assumption Agreement andterms of the outstanding Indebtedness of Holdings and its Subsidiaries including, without limitation, the ABL Loan Documents and the Senior Note Documents,
(iii) to the extent required requested by the Administrative Agent, consistent the Parent Borrower, shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Parent Borrower reasonably satisfactory to the Administrative Agent and dated such date,
(iv) an Incremental Term Loan Note (to the extent requested) will be issued at the Borrowers’ expense, to each such Incremental Lender, to be in conformity with those requirements of subsection 2.2(b) (with appropriate modification) to the extent necessary to reflect Incremental Term Loans of such Incremental Lender, and
(v) the applicable Borrowers and Incremental Lender shall have delivered on the Closing Date under Section 4.01 and such additional customary other instruments, documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) agreements as the Administrative Agent may reasonably require have requested in order to assure that effectuate the documentation of the foregoing. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement.
(c) In connection with each incurrence of Incremental Term Loans are secured by the Collateral ratably with (or, pursuant to subsection 2.1(b) that have been specified pursuant to the extent agreed by the applicable respective Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the Loan Commitment Agreement as being part of an existing Tranche of Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments the Lenders and the Loans Borrowers hereby agree that, notwithstanding anything to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.contrary contained in this Agreement:
(ei) Each of the parties hereto hereby agrees that Borrowers and the Administrative Agent may take any and all action such actions as may be reasonably necessary to ensure that (i) all Incremental Lenders with outstanding Term Loans (other than Other Term Loans) in under the form of additional Term Loans, when originally made, are included relevant Tranche continue to participate in each Borrowing of outstanding Term Loans under such Tranche (after giving effect to the incurrence of Incremental Term Loans pursuant to subsection 2.1(b) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate , including by adding the Incremental Term Loans to ABR be so incurred to the then outstanding Borrowings of Term Loans reasonably required by the Administrative Agent to effect the foregoing. If any on a pro rata basis even though as a result thereof such new Incremental Term Loan is (to the extent required to be allocated to an existing maintained as Eurocurrency Loans), may effectively have a shorter Interest Period for a LIBO Rate Loan, than the then the interest rate thereon for outstanding Borrowings of Term Loans under such Interest Period Tranche and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, it is hereby agreed that (x) to the extent any then outstanding Borrowings of Term Loans that are maintained as Eurocurrency Loans are affected as a result thereof, any costs of the type described in subsection 3.12 incurred by such Lenders in connection therewith shall be for the account of the Borrowers or (y) to the extent the Incremental Term Loans to be so incurred are not Other added to the then outstanding Borrowings of Term Loans which are maintained as Eurocurrency Loans, the scheduled amortization payments under Section 2.07(a) required to be Lenders that have made after the making of such additional Incremental Term Loans shall be ratably increased by entitled to receive an effective interest rate on such additional Incremental Term Loans as is equal to the aggregate principal Eurocurrency Rate as in effect two Business Days prior to the incurrence of such additional Incremental Term Loans plus the then Applicable Margin for such Tranche of Term Loans until the end of the respective Interest Period or Interest Periods with respect thereto,
(ii) the Incremental Term Loans to be made pursuant to such Incremental Term Loan Commitment Agreement shall have the same Maturity Date and the same Weighted Average Life to Maturity as the Tranche of Term Loans to which the new Incremental Term Loans are being added, and shall bear interest at the same rates (i.e., have the same Applicable Margins) applicable to such Tranche, and
(iii) the new Incremental Term Loans shall have the same amortization dates (if any) as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of principal to be repaid on each such amortization date applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount to be repaid on each then remaining amortization date of the respective Tranche proportionately.
(d) Each Lender hereby covenants and agrees to enter into any technical amendments necessary in connection with the provision of Incremental Term Loans hereunder in accordance with the provisions of this subsection 2.5 and the respective Incremental Term Loan Commitment Agreement, provided that such amendment shall be strictly limited to the provisions necessary to incorporate the appropriate provisions for such Incremental Term Loans.
Appears in 1 contract
Samples: Second Lien Term Loan Credit Agreement (RSC Holdings Inc.)
Incremental Term Loan Commitments. (a) The Each Borrower mayshall have the right, by written notice to in consultation and coordination with the Administrative Agent (signed by a Responsible Officer but without requiring the consent of any of the Borrower) Lenders, to request, at any time and from time to timetime on or after the CL Maturity Date and prior to the then latest Maturity Date, request that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan CommitmentsCommitments to such Borrower and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the respective Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Commitment Agreement, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request, (ii) each Tranche of Incremental Term Loan Commitments shall be made available to a single Incremental Term Loan Borrower and shall be denominated in Dollars, (iii) the amount of the each Tranche of Incremental Term Loan Commitments being requested (which shall be in an a minimum aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof)25,000,000, (iiiv) the date on which such aggregate amount of all Incremental Term Loan Commitments are requested provided pursuant to become effective (this Section 1.15 shall not exceed the “Increased Amount Date”), (iii) whether such Maximum Incremental Term Loan Commitments are to be Commitment Amount, (v) the up-front fees and, if applicable, any unutilized commitment fees and/or other fees payable in respect of each Incremental Term Loan Commitments or commitments Commitment shall be separately agreed to make term loans with pricing and/or amortization terms different from by the respective Incremental Term Loans (“Other Term Loans”).
(b) The Loan Borrower and each Incremental Term Loan Lender shall execute (and deliver with all such fees to be disclosed in writing by the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the respective Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory Borrower to the Administrative Agent), (iivi) the final maturity date each Tranche of any Other Incremental Term Loans shall be have (I) (x) an Incremental Term Loan Maturity Date of no earlier than the then latest Maturity DateDate as then in effect, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (ivy) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of any Other Term then outstanding Loans shall be no shorter than with the remaining longest Weighted Average Life to Maturity and (II) an “interest rate” or “interest rates” applicable to such Tranche of the Incremental Term Loans. If the Applicable Margin Loans (which, for such purposes of this sentence only, shall be determined by the Administrative Agent and deemed to include all upfront or similar fees or original issue discount (amortized over the life of such Incremental Term Loans) payable to all Lenders providing such Incremental Term Loans, as applicable) relating to but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Tranche of Incremental Term Loan Commitment exceeds Loans) that may (at such time or from time to time thereafter) exceed the Applicable Margin relating “interest rates” applicable to the Term Loans; provided that, in the event that the “interest rate” excess applicable to such Tranche of Incremental Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more shall at such time be greater than 0.250.50%, the Applicable Margin relating to for the Tranche B-1 Term Loans, the Tranche C-1 Term Loans and each other then existing Tranche of Incremental Term Loans shall be adjusted to be equal increased by such amounts, and for such time periods, as are needed so that at no time shall the “interest rate” for the respective new Tranche of Incremental Term Loans (calculated as described above) exceed the relevant interest rates applicable to the Applicable Margin relating to such then existing Tranches of Term Loans by more than 0.50%, (vii) the proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 7.05(a), (viii) each Incremental Term Loan Commitment minus 0.25%.
(c) Each Agreement shall specifically designate, with the approval of the parties hereto hereby agrees thatAdministrative Agent, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms Tranche of the Incremental Term Loan Commitments evidenced thereby as being provided for in Section 9.02(f). Any such deemed amendment thereunder (which Tranche may be memorialized in writing by a new Tranche (i.e., not the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no same as any existing Tranche of Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such dateor other Term Loans) or an increase in a previously established Tranche), the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (iix) all Incremental Term Loans (and all interest, fees and other than Other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Documents, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans of the applicable Borrower secured by each such Security Agreement and guaranteed under each such Guaranty, and (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term LoansLoan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitment Agreement as provided in Section 1.01(c) and such Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 1.15, the applicable Incremental Term Loan Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Loan Commitment (each, an "Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Term Loan Commitment Agreement substantially in the form of additional Term LoansExhibit I (appropriately completed), when originally made, are included in each Borrowing with the effectiveness of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is Commitment provided therein to be allocated to an existing Interest Period for a LIBO Rate Loan, then occur on the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as date set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans Loan Commitment Agreement, which date in any event shall be ratably increased by no earlier than the aggregate principal amount of such date on which all Incremental Term LoansLoan Commitment Requirements are satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Incremental Term Loan Commitments. (a) The Borrower maymay make one or more requests, by written notice to the Administrative Agent (signed by a Responsible Officer of at any time after the Borrower) from time Effective Date and prior to timethe Maturity Date, request Incremental Term Loan Commitments, Commitments in an aggregate amount not to exceed $80,000,000 50,000,000 for all such requests from one or more Incremental Term Lenders (Lenders, which may include any existing Lender) willing Lender (each of which shall be entitled to provide such agree or decline to participate in its sole discretion); provided that each Incremental Term Loans Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent, and in their own discretionno event shall the Borrower or any Affiliate of Borrower be an Incremental Term Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples minimum increments of $1,000,000 in excess thereof10,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) (the “Increased Amount Increase Effective Date”), ) and (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments for Loans or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans to be made thereunder; provided that that, without the prior written consent of the Majority Lenders, (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, Date and (iiiii) the terms applicable average life to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life average life to Maturity maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds and provided further that, if the Applicable Margin relating to the initial yield on such Other Term Loans or (as determined by the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted Administrative Agent to be equal to the sum of (x) the amount by which the Adjusted LIBO Rate on such Other Term Loans exceeds the Adjusted LIBO Rate that would be in effect for a three-month Interest Period commencing on such date) and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same receive an upfront fee (other than a customary arrangement or underwriting fee) directly or indirectly from the Borrower or any Subsidiary of the Borrower (the amount of such discount or upfront fee, expressed as a percentage of the Other Term Loans being referred to herein as “OID”), the amount of such OID divided by the lesser of (x) the average life to maturity of such Other Term Loans and (y) four), exceeds by more than 100 basis points the sum of (A) the margin then in effect for Loans that are Eurodollar Loans plus (B) one-quarter of the amount of OID initially paid in respect of the Loans (the amount of such excess above 100 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin relating then in effect for each such affected Type of Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Term Loan Commitment minus 0.25%.
(c) Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments Commitment evidenced thereby as provided for in Section 9.02(f)12.02. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(dc) Notwithstanding the foregoing, (i) no Incremental Term Loan Commitment shall be permitted without the consent of all Lenders if the Loan Parties sell, assign or otherwise transfer Oil and Gas Properties that constitute Collateral after the Effective Date for consideration that exceeds, in the aggregate, $25,000,000, and (ii) no Incremental Term Loan Commitment shall become effective under this Section 2.20 2.07 unless (iA) on the date representations and warranties of such effectiveness, the conditions Loan Parties set forth in paragraphs (b) this Agreement and (c) in the other Loan Documents are true and correct in all material respects on and as of Section 4.02 the Increase Effective Date, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, such representations and warranties shall be satisfied true and correct as of such specified earlier date, (B) no Default or Event of Default then exists or would result from the incurrence of such Incremental Term Loans, (C) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Effective Date, (D) the Borrower would be in pro forma compliance with the covenants set forth in Section 9.01 after giving effect to the incurrence of such Incremental Term Loans, (E) the Administrative Agent has received evidence reasonably satisfactory to it evidencing a permanent reduction in the Borrowing Base of $0.25 for each $1.00 of Incremental Term Loans incurred, and (F) Administrative Agent shall have received an officer’s certificate to that effect dated such date and on the Increase Effective Date executed by a Responsible Officer of the BorrowerBorrower that (x) certifies as to compliance with subclauses (A), (B) and (D) of clause (ii) of this paragraph (c), (y) attaches true and complete copies of any documents evidencing the Administrative Agent shall have received customary legal opinionsreduction in the Borrowing Base contemplated by subclause (E) of clause (ii) of this paragraph (c), board resolutions and other customary closing certificates and documentation as (z) contains the calculations (in reasonable detail) required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings subclause (including amendments to the Mortgages and other Security Documents and title endorsement bringdownsD) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with of clause (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toii) the existing Term Loans, of this paragraph (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingc).
(ed) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The , and the Borrower agrees that Section 2.16 5.02 shall apply to any conversion of LIBO Rate Eurodollar Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower mayA. So long as the Incremental Loan Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, Company shall have the right, by written notice to the and in coordination with, Administrative Agent (signed by a Responsible Officer as to all of the Borrower) matters set forth below in this Section 2.11, but without requiring the consent of any of the Lenders, to request at any time and from time to timetime after the Closing Date, request that one or more Lenders (and/or one or more other Persons which are Eligible Assignees and which will become Lenders (each, an “Additional Lender”)) provide Incremental Term Loan CommitmentsCommitments to Company and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the respective Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Commitment Agreement, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by Company, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to Administrative Agent and Company an Incremental Term Loan Commitment Agreement as provided in Section 2.11B, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Additional Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in Dollars, (iv) the amount of the each Tranche of Incremental Term Loan Commitments being requested (which shall be in an a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of not less than Incremental Term Loans (including Additional Lenders) of at least $10,000,000 25,000,000 and in integral multiples of $1,000,000 5,000,000 in excess thereof), (iiv) the date on which aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.11, when combined with the aggregate amount of all Incremental RL Commitments provided pursuant to Section 2.12, shall not exceed the Maximum Incremental Commitment Amount, (vi) the up-front fees and, if applicable, any unutilized commitment fees and/or other fees, payable to each Incremental Term Loan Lender in respect of each Incremental Term Loan Commitment shall be separately agreed to by Company, Administrative Agent and each such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”)Lender, (iiivii) whether such each Tranche of Incremental Term Loans shall (I) have an Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment Maturity Date of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Initial Term Loan Maturity Date, (iiiII) the terms applicable have a Weighted Average Life to each series Maturity of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) no less than the Weighted Average Life to Maturity as then in effect for the Initial Term Loans and (III) be subject to the Applicable Margins as are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans; provided, however, that if the “effective interest rate margin” for such Incremental Term Loans as of any Other date of incurrence of such Tranche of Incremental Term Loans shall be no shorter than which is on or prior to the remaining Weighted Average Life to Maturity of date that is 540 days after the Term Loans. If the Applicable Margin Closing Date (which, for such purposes of this sentence only, shall be determined by Administrative Agent and deemed to include all upfront or similar fees or original issue discount (amortized over the life of such Incremental Term Loans) payable to all Lenders providing such Incremental Term Loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Term Loans) exceeds the “effective interest rate margin” then applicable to any Tranche of then outstanding Term Loans (determined on the same basis as applicableprovided in the immediately preceding parenthetical) relating by more than 0.50% per annum, the Applicable Margins for all then outstanding Term Loans shall be increased as of such date in accordance with the requirements of the definitions of “Applicable Term Loan Base Rate Margin” and “Applicable Term Loan LIBOR Margin”, (viii) the proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 5.9C, (ix) each Incremental Term Loan Commitment Agreement shall specifically designate the Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans or Initial Term Loans) unless the requirements of Section 2.11C are satisfied), (x) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Loan Documents and shall be secured by the Collateral Documents, and guaranteed under the Subsidiary Guaranty, on a pari passu basis with all other Obligations secured by the Collateral Documents and guaranteed under the Subsidiary Guaranty, and (xi) each Lender (including any Eligible Assignee which will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitment Agreement as provided in Section 2.1A(iv) and such Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Loan Documents.
B. At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.11, Company, Administrative Agent and each such Lender or Additional Lender which agrees to provide an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to Administrative Agent an Incremental Term Loan Commitment Agreement, with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date set forth in such Incremental Term Loan Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to Administrative Agent (or any Affiliate thereof)), (x) all Incremental Loan Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.11 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Term Loan Commitment Agreement shall have been satisfied. Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement, and at such time, (i) Schedule 2.1 shall be deemed modified to reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued, at Company’s expense, to such Incremental Term Loan Lender in conformity with the Applicable Margin relating requirements of Section 2.1E.
C. Notwithstanding anything to the contrary contained above in this Section 2.11, the Incremental Term Loans Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, C-1, C-2, C-3, etc.); provided that with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Incremental Term Loans or the outstanding Tranche of Initial Term Loans, in either case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to have the extent (but only to the extent) necessary to reflect the existence and terms of the same Incremental Term Loan Commitments evidenced thereby Maturity Date and shall have the same Applicable Margins as provided for in Section 9.02(f). Any the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such deemed amendment may be memorialized in writing by the Administrative Agent new Incremental Term Loans are being added (with the Borrower’s consent (not amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be unreasonably withheldthe same (on a proportionate basis) and furnished as is theretofore applicable to the other parties hereto.Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.2B, such new Incremental Term Loans shall be ratably increased by added to (and form part of) each borrowing of outstanding Term Loans of the aggregate principal amount respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding borrowings), so that each Lender will participate proportionately in each then outstanding borrowing (and the related Interest Periods, if any) of Term Loans of the respective Tranche. To the extent the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term LoansLoans to the then outstanding Interest Periods of LIBOR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBOR Loans of such Tranche and which will end on the last day of such Interest Period). In connection therewith, Company hereby agrees to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding LIBOR Loans during an existing Interest Period on such basis as may be agreed by Company and the respective Lender or Lenders as may be provided in the respective Incremental Term Loan Commitment Agreement.
Appears in 1 contract
Samples: Credit Agreement (Alliance HealthCare Services, Inc)
Incremental Term Loan Commitments. (a) The At any time prior to the Latest Maturity Date, the Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of which the Borrower) from time Administrative Agent shall promptly furnish to timeeach Lender), request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from that one or more Incremental Term Lenders Persons (which may include any the then-existing Lender) willing Lenders; provided that no Lender shall be obligated to provide such Incremental Term Loan Commitments and may elect or decline in its sole discretion to provide Incremental Term Loan Commitments) establish Incremental Term Loans under this paragraph (a), it being understood that (x) if such Incremental Term Loan Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in their own discretion. Such notice the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Term Loan Commitment; provided that the minimum aggregate principal amount accepted shall set forth equal the lesser of (i) $10,000,000 or (ii) the aggregate Incremental Term Loan Commitments proposed to be provided in response to the Borrower’s request. The minimum aggregate principal amount of any Incremental Term Loan Commitment shall be $10,000,000, (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Term Loan Commitments pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) exceed an amount equal to the sum of (i) $75,000,000, (ii) the aggregate principal amount of voluntary prepayments of the Term Loans and any Incremental Equivalent Debt, other than prepayments from proceeds of long-term Indebtedness and (iii) any additional amount so long as on the date of incurrence of such Incremental Term Loan Commitment (subject to the terms of Section 2.17(b) below), in the case of this clause (iii), the Secured Leverage Ratio does not exceed 3.00 to 1.00 on a Pro Forma Basis (assuming the full amount available thereunder is drawn and without netting the cash proceeds thereof) with any Incremental Equivalent Debt under Section 6.01(h) being deemed to constitute Indebtedness secured on a pari passu basis with the Term Facilities for the purposes of calculating the Secured Leverage Ratio even if unsecured. The Borrower shall be deemed to have utilized the amounts under clause (ii) prior to using the amounts under clause (i) or (iii) and the Borrower shall be deemed to have utilized the amounts under clause (iii) (to the extent compliant therewith) prior to utilization of the amounts under clause (i). The Borrower may arrange for one or more banks or other financial institutions, which may include any Lenders, to provide Incremental Term Loans or increase their applicable existing Term Loans in an aggregate amount equal to the amount of the Incremental Term Loan Commitments being requested Commitment. Incremental Term Loans may be made hereunder pursuant to an amendment, supplement or amendment and restatement (which an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Loan Parties, each Lender participating in such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and the Administrative Agent. Each Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.17. Notwithstanding the foregoing, no Incremental Term Loans shall be become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Term Loan Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Borrower that, subject to the proviso set forth below, that the conditions set forth in an aggregate amount of not less than $10,000,000 Section 4.01(h)(ii)(A) and in integral multiples of $1,000,000 in excess thereof(h)(ii)(B), (ii) the date Administrative Agent shall have received documents from the Borrower consistent with those delivered on which the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Term Loan Commitments are Commitment and (iii) the Administrative Agent shall have received customary legal opinions or other certificates reasonably requested by it in connection with any such transaction; provided that, with respect to become effective any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (the “Increased Amount DateAcquisition-Related Incremental Term Loan Commitments”), clause (iiii) whether of this sentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such Limited Condition Acquisition Agreement, (2) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Term Loan Commitments are Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Term Loan Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Term Loan Commitments Commitment. Nothing contained in this Section 2.17 shall constitute, or commitments otherwise be deemed to make term loans with pricing and/or amortization terms different from be, a commitment on the part of any Lender to provide Incremental Term Loans (“Other Term Loans”)at any time.
(b) The Borrower Loan Parties and each Incremental Term Loan Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement Term Loan Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Loan Lender. Each Incremental Assumption Agreement Term Loan Amendment shall specify the terms of the applicable Incremental Term Loans; provided that that:
(i) the Other any commitments to make Incremental Term Loans shall rank pari passu or junior in right the form of payment and of security with the additional Initial Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Initial Term B Loans, and shall form part of the same Class of Initial Term B Loans,
(ii) [reserved],
(iii) any commitments to make Term Loans or (y) such with pricing, maturity, amortization and/or other terms as different from the Initial Term B Loans (“Other Incremental Term Loans”) shall be reasonably satisfactory subject to compliance with clauses (iv) through (viii) below,
(iv) the Administrative Agent, Other Incremental Term Loans incurred pursuant to clause (iia) of this Section 2.17 shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans,
(v) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Maturity Date, (iii) the terms Date applicable to each series Term Loans in effect at the date of incurrence of such Other Incremental Term Loans, and, except as to pricing, amortization, final maturity date and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Loan Lenders in their sole discretion), the Other Incremental Term Loans shall have terms, to the extent not require any prepayment thereof in excess consistent with the Initial Term B Loans, that are not more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the pro rata share of such series relative to all Initial Term Loans B Loans,
(including the Term Loans made on the Closing Date and all other Other Term Loans) and (ivvi) the Weighted Average Life to Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the then outstanding Term Loans. If Loans with the Applicable Margin longest remaining Weighted Average Life to Maturity,
(which, for purposes of this sentence only, vii) there shall be deemed no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments,
(viii) Other Incremental Term Loans shall not be secured by any asset of the Borrower or its Subsidiaries other than the Collateral, and
(ix) the interest rate margins and (subject to include all upfront or similar fees or original issue discount payable clause (v) above) amortization schedule applicable to all Lenders providing such the Loans made pursuant to the Incremental Term Loans, as applicable) relating to Loan Commitments shall be determined by the Borrower and the applicable Incremental Term Loan Lenders; provided that in the event that the All-in Yield for any Incremental Term Loan incurred by the Borrower under any Incremental Term Loan Commitment exceeds the Applicable Margin relating on or prior to the 12 month anniversary of the Effective Date is higher than the All-in Yield for the outstanding Initial Term B Loans or the Credit-Linked Deposits, as the case may be, hereunder immediately prior to the effectiveness incurrence of the applicable Incremental Assumption Agreement Term Loans by more than 0.25%50 basis points, then the Applicable Margin relating effective interest rate margin for the Initial Term B Loans at the time such Incremental Term Loans are incurred shall be increased to the extent necessary so that the All-in Yield for the Initial Term B Loans shall be adjusted to be is equal to the Applicable Margin relating to All-in Yield for such Incremental Term Loan Commitment Loans minus 0.25%.
(c) 50 basis points. Each of the parties party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption AgreementTerm Loan Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f)9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.17 and any such Collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) . Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans) in the form of additional Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, Notwithstanding anything to the extent contrary, this Section 2.17 shall supersede any Incremental Term Loans are not Other Term Loans, provisions in Section 2.15 or Section 9.02 to the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanscontrary.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, Commitments in an aggregate amount (excluding any Incremental Term Loan Commitments in respect of Refinancing Term Loans) not to exceed $80,000,000 the Incremental Term Loan Amount from one or more Incremental Term Lenders (Lenders, which may include any existing Lender) willing to provide such ; provided that each Incremental Term Loans in their own discretionLender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent to the extent such consent would be required for an assignment to such Lender pursuant to Section 11.06(b). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate minimum increments of $1.0 million and a minimum amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof5.0 million or such lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”)effective, and (iii) whether such Incremental Term Loan Commitments are commitments to be make additional Term Loan Commitments Loans or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such each Incremental Term Lender. Each Incremental Assumption Agreement Additional Credit Extension Amendment pursuant to this Section 2.12 shall specify the terms of the applicable Incremental Term LoansLoans to be made thereunder; provided that that, without the prior written consent of the Required Lenders, (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity DateDate of the Term B-12 Loans, (iiiii) the terms applicable weighted average life to each series of Other Term Loans shall not require any prepayment thereof in excess maturity of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the then already outstanding Term B-12 Loans, (iii) any Incremental Term Loans shall rank (A) pari passu in right of payment to the Loans and (B) with respect to security, pari passu with the Term Loans and (iv) the provisions with respect to payment of interest, original issue discount and upfront fees shall be as set forth in the applicable Additional Credit Extension Amendment; provided that if the Yield of any Incremental Term Loans (other than Refinancing Term Loans) exceeds the Yield of the Term Loans. If B-12 Loans by more than 50 basis points, then the Applicable Margin for the Term B-12 Loans shall be increased to the extent required so that the Yield of the Term B-12 Loans is equal to the Yield of such Incremental Term Loans minus 50 basis points and (v) all other terms (other than the amortization schedule, which, for purposes of this sentence onlysubject to clauses (i) and (ii) above, shall be deemed to include all upfront or similar fees or original issue discount payable to all determined by Borrower and the Lenders providing such Term Loans, as applicablethereunder) relating applicable to any Incremental Term Loan Commitment exceeds Loans shall either be substantially identical to the Applicable Margin relating terms applicable to the Term Loans or shall be reasonably satisfactory to the Credit-Linked DepositsAdministrative Agent. For the avoidance of doubt, no Lender shall have any obligation to provide any Incremental Term Loan. The Administrative Agent shall promptly notify each Lender as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption AgreementAdditional Credit Extension Amendment pursuant to this Section 2.12, this Agreement and the other Loan Documents shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments Commitment and the Incremental Term Loans evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties heretothereby.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 2.12 unless (i) on the date of such effectiveness, the conditions set forth representations and warranties of the Borrower and each other Loan Party contained in paragraphs (b) this Agreement and (c) of Section 4.02 the other Loan Documents shall be satisfied true in all material respects on such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, (ii) no Default or Event of Default shall have occurred or be continuing or would result therefrom, (iii) calculations shall have been made by the Borrower demonstrating that, on a Pro Forma Basis, the Consolidated Leverage Ratio (calculated to exclude the net cash proceeds from such Incremental Term Loan Commitment) for the Measurement Period most recently ended prior to the date of such effectiveness is no greater than 4.00 to 1.00, (iv) the Administrative Agent shall have received a (with sufficient copies for each of the Incremental Term Lenders) an officer’s certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, Borrower certifying as to compliance with preceding clauses (i) and (ii) and containing the Administrative Agent shall have received customary calculations (in reasonable detail) required by preceding clause (iii), together with (unless otherwise specified in the applicable Additional Credit Extension Amendment) legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required reasonably requested by the Administrative Agent, Agent and consistent with those delivered on the Closing Date under Section 4.01 4.01, (viv) all fees and such additional customary documents and filings (including amendments expenses owing to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that or the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to connection with such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such dateCommitment shall have been paid, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (ivviv) both before the Additional Credit Extension Amendment and after giving effect any other documents entered into in connection therewith shall be reasonably satisfactory to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingAdministrative Agent.
(ed) Each of the parties hereto hereby agrees that the Administrative Agent may may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply This may be accomplished by requiring each outstanding LIBO Rate Borrowing to any be converted into a Base Rate Borrowing on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding LIBO Rate Loan on a pro rata basis. Any conversion of LIBO Rate Loans to ABR Base Rate Loans reasonably required by the Administrative Agent preceding sentence shall be subject to effect the foregoingSection 3.05. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate LoanBorrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption AgreementAdditional Credit Extension Amendment. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a2.05(a) or 2.05(c) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The So long as no Default or Event of Default then exists or would result therefrom, the Borrower mayshall, by written notice to in consultation with the Administrative Agent (signed by a Responsible Officer of Agent, have the Borrower) from time right to time, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from on one or more Incremental Term occasions after the Closing Date and prior to the Maturity Date that the Lenders or, subject to the right of first refusal referred to in clause (which may include any existing Lenderii) willing to below, other Persons qualifying as an Eligible Assignee, provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be and, subject to the terms and conditions contained in an aggregate amount of not less than $10,000,000 this Agreement and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which such relevant Incremental Term Loan Commitments are requested Commitment Agreement, make Incremental Term Loans pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to become effective (the “Increased Amount Date”), (iii) whether such provide an Incremental Term Loan Commitments are Commitment as a result of any request by the Borrower, until such time, if any, as (x) such Lender has agreed in its sole discretion to be provide an Incremental Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower Commitment and each Incremental Term Lender shall execute executed and deliver delivered to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; as provided that (iin Section 2.01(d) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such the other terms as conditions set forth in Section 2.01(d) shall be reasonably satisfactory to the Administrative Agenthave been satisfied, (ii) the final maturity Lenders shall have ten (10) Business Days from the date of any Other receipt of notice by the Administrative Agent of the proposed terms of such Incremental Term Loans Loan to decide whether to provide an Incremental Term Loan Commitment (it being understood and agreed that the failure to respond within such 10 Business Day period shall be no earlier than the Maturity Datedeemed an election by a Lender not to participate in such Incremental Term Loan), (iii) any Lender (or, after the terms applicable to each series of Other Term Loans shall not require 10 day exercise period referenced above has lapsed, any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term LoansPerson which will qualify as an Eligible Assignee) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any may so provide an Incremental Term Loan Commitment exceeds without the consent of any other Lender, (iv) each provision of Incremental Term Loan Commitments pursuant to this Section 2.01(c) for any Lender shall be in an amount of at least $5,000,000, (v) the aggregate amount of all Incremental Term Loan Commitments permitted to be provided hereunder and the aggregate principal amount of all Incremental Term Loans permitted to be made hereunder shall not, in either case, exceed TWO HUNDRED MILLION DOLLARS ($200,000,000), (vi) the Applicable Margin relating Rate with respect to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to any such Incremental Term Loan Commitment minus 0.25%.
(c) Each of and the parties hereto hereby agrees that, upon the effectiveness of fees payable to any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Lender providing an Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions be as set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement andTerm Loan Commitment Agreement, (vii) in no event shall the Maturity Date of such Incremental Term Loan be earlier than the Maturity Date of the Revolving Loans (viii) the scheduled principal payments with respect to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Term Loan Commitment Agreement. In addition, provided that in no event shall the weighted average life to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making maturity of such Incremental Term Loans Loan be less than the weighted average life to maturity of the Revolving Loans, (ix) the applicable Incremental Term Loan shall only be ratably increased by the aggregate principal amount of permitted hereunder if after giving effect to such Incremental Term LoansLoan on a Pro Forma Basis, (a) the Consolidated Senior Leverage Ratio calculated on a Pro Forma Basis is at least 0.25 less than the ratio required to be maintained at such time by Section 8.11(a), and (b) the Loan Parties are in compliance with Section 8.11, and (x) all actions taken by the Borrower pursuant to this Section 2.01(c) and Section 2.01(d) shall be done in coordination with the Administrative Agent.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right, by written notice to without requiring the Administrative Agent (signed by a Responsible Officer consent of any of the Borrower) Lenders, to request at any time and from time to time, request time that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrower and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Commitment Agreement, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 after the Closing Date, on the date of incurrence thereof, when taken together with the aggregate principal amount of Permitted Pari Passu Notes, Permitted Pari Passu Loans and Permitted Junior Debt incurred pursuant to Section 10.04(xxvii)(A)(1) on such date, shall not exceed (x) the then remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Term Loans incurred by the Borrower may be used for any purpose not prohibited under this Agreement, (vii) the Borrower, in consultation with the Administrative Agent, shall specifically designate in the Incremental Term Loan Commitment Agreement the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof)Incremental Term Loans, (ii) the date on which such Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are requested to become effective (the “Increased Amount Date”satisfied), (iiiviii) whether if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Commitment Agreement, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, except in the case of Extendable Bridge Loans, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may 56
(b) At the time of the provision of Incremental Term Loan Commitments are pursuant to be this Section 2.15, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans Commitment (each, an “Other Term Loans”).
(b) The Borrower and each Incremental Term Lender Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such (which shall not require the consent of any other documentation as Lender), with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued at the Applicable Margin relating Borrower’s expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied: (i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added; (ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the extent Tranche to which such new Incremental Term Loans are being added (but only with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the extent) necessary Tranche to reflect the existence and terms of the which such new Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.57
(d) Notwithstanding Subject to compliance with the foregoingother applicable requirements set forth in this Section 2.15, no any new Incremental Term Loan Commitment shall become effective under this Section 2.20 unless may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part, of any applicable Term Loans then outstanding so long as: (i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the date of such effectiveness, the conditions set forth in paragraphs (b) same terms); and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application amount of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are does not Other Term Loans, exceed the scheduled amortization payments under Section 2.07(asum of (x) required to be made after the making principal amount of such Incremental the applicable Term Loans shall be ratably increased by effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the aggregate principal amount establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right, by written notice to without requiring the Administrative Agent (signed by a Responsible Officer consent of any of the Borrower) Lenders, to request at any time and from time to time, request time that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrower and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Commitment Agreement, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 after the Closing Date, on the date of incurrence thereof, when taken together with the aggregate principal amount of Permitted Pari Passu Notes, Permitted Pari Passu Loans and Permitted Junior Debt incurred pursuant to Section 10.04(xxvii)(A)(1) on such date, shall not exceed (x) the then remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Term Loans incurred by the Borrower may be used for any purpose not prohibited under this Agreement, (vii) the Borrower, in consultation with the Administrative Agent, shall specifically designate in the Incremental Term Loan Commitment Agreement the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofSection 2.15(c) are satisfied), (iiviii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Commitment Agreement, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, except in the case of Extendable Bridge Loans, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for any such Incremental Term Loans incurred prior to the date that is six (6) months after the Closing Date exceeds the Effective Yield then applicable to any then outstanding Term B-1 Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Term B-1 Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” (the “MFN Pricing Test”) and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on which a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such (which shall not require the consent of any other documentation as Lender), with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked DepositsRequirements are satisfied, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
and (cz) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the all other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.this
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower mayNew Holdings shall have the right, by written notice to in consultation and coordination with the Administrative Agent (signed by a Responsible Officer as to all of the Borrower) matters set forth below in this subsection 2.4, but without requiring the consent of any of the Lenders, to request at any time and from time to timetime that one or more Lenders (and/or one or more other Persons which are Eligible Assignees and which will become Lenders (it being understood that New Holdings shall have no obligation to seek commitments in respect of Incremental Term Loans from existing Lenders)) provide Incremental Term Loan Commitments to the Borrowers and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by New Holdings, (ii) any Lender (including any Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Transferees who will become Lenders) of at least $10,000,000 (or, if less, the remaining available amount), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this subsection 2.4 after the Effective Date and all Indebtedness incurred pursuant to subsection 8.2(h) shall not exceed at the time of incurrence thereof the sum of (x) $150,000,000, plus (y) the sum of all voluntary prepayments of Term Loans and Indebtedness incurred pursuant to subsection 8.2(h) that ranks pari passu with the Initial Term Loans (limited to the cash payment made by any Loan Party or Restricted Subsidiary therefor) (in each case other than any prepayment (1) of Incremental Term Loans to the extent such Incremental Term Loans were obtained pursuant to clause (z) below or of Indebtedness incurred pursuant to subsection 8.2(h) or (2) to the extent funded with the proceeds of long-term Indebtedness (other than Indebtedness under an ABL Facility)) in each case prior to the applicable date of incurrence of any such Incremental Term Loan Commitments, plus (z) an unlimited amount (a “Ratio-Based Incremental Facility”) so long as, in an aggregate amount not the case of this clause (z) only, (i) in the case of Indebtedness secured by Xxxxx on the Collateral that rank pari passu with the Liens securing the Initial Term Loans, on a pro forma basis, the Consolidated First Lien Net Leverage Ratio is less than or equal to exceed $80,000,000 from one 3.75 to 1.00 as of the last day of the most recently ended Test Period and (ii) in the case of Indebtedness secured by Liens on the Collateral that ranks junior with to the Liens securing the Initial Term Loans, on a pro forma basis, the Consolidated Total Net Leverage Ratio is less than or more Incremental Term Lenders equal to 5.00 to 1.00 as of the last day of the most recently ended Test Period (which it being understood that the Borrowers may include any existing Lenderutilize amounts under clause (z) willing prior to provide such amounts under clause (x) or clause (y) and that amounts under both clauses may be used in a single transaction), (v) the proceeds of all Incremental Term Loans in their own discretion. Such notice incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vi) each Incremental Term Loan Commitment Agreement shall set forth (i) specifically designate, with the amount approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofsubsection 2.4(c) are satisfied), (iivii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other then outstanding Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of the preceding clause (v)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by subsection 4.6; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a weighted average life to maturity of no less than the weighted average life to maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest weighted average life to maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin”; provided, further, (A) if any Incremental Term Loans, which are secured by a Lien on which the Collateral ranking pari passu with the Lien on the Collateral securing the Indebtedness hereunder, include a Eurodollar RateTerm SOFR or ABR floor that is greater than the Eurodollar RateTerm SOFR or ABR floor applicable to the existing Initial Term Loans, such differential between interest rate floors shall be included in the calculation of Effective Yield but only to the extent an increase in the Eurodollar RateTerm SOFR or ABR floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder and (B) to the extent any increase in the Effective Yield on the existing Initial Term Loans is required pursuant to the immediately preceding proviso, such increase shall be effected first through an increase in the Eurodollar RateTerm SOFR or ABR floor applicable to such existing Initial Term Loans in an amount equal to the amount of the differential indicated in the foregoing clause (A) with any remaining required increase effected pursuant to an increase the Applicable Margin to the extent required by the definition thereof, and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II) and clause (ix) below) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrowers shall be Obligations of the Borrowers under this Agreement and the other applicable Loan Documents and shall be secured by the Security Documents, and guaranteed under each relevant guarantee, on a pari passu or junior basis with all other Term Loans secured by the Security Documents and guaranteed under each such Collateral and Guarantee Agreement and no Incremental Term Loans shall have any obligors, guarantors or collateral other than those applicable to the other Term Loans, (x) each Lender (including any Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in subsection 2. 1(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Loan Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this subsection 2.4, the Borrowers, the Administrative Agent and each such Lender or other Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit N (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this subsection 2.4 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 1.1A shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the addition of the Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Notes will be issued at the Applicable Margin relating Borrowers’ expense to such Incremental Term Loan Lender, to be in conformity with the requirements of subsection 4.2(e) (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this subsection 2.4, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrowers, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same amortization payment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each amortization payment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining amortization payment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately;
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated subsection 4.7, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to subsection 2.1(b)) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by ; and
(iv) the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making Effective Yield of such Incremental Term Loans shall be ratably increased by would not result in an increase in the aggregate principal amount of Applicable Margins for the Initial Term Loans (assuming for this purpose, that such Incremental Term Loans had been incurred as a new Tranche of Incremental Term Loans). To the extent the provisions of the preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of EurodollarTerm SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding EurodollarTerm SOFR Loans of such Tranche and which will end on the last day of such Interest Period). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Samples: Credit Agreement (Cumulus Media Inc)
Incremental Term Loan Commitments. (a) The At any time prior to the Latest Maturity Date, the Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of which the Borrower) from time Administrative Agent shall promptly furnish to timeeach Lender), request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from that one or more Incremental Term Lenders Persons (which may include any the then-existing Lender) willing Lenders; provided that no Lender shall be obligated to provide such Incremental Term Loan Commitments and may elect or decline in its sole discretion to provide Incremental Term Loan Commitments) establish Incremental Term Loans under this paragraph (a), it being understood that (x) if such Incremental Term Loan Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in their own discretion. Such notice the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Term Loan Commitment; provided that the minimum aggregate principal amount accepted shall set forth equal the lesser of (i) $10,000,000 or (ii) the aggregate Incremental Term Loan Commitments proposed to be provided in response to the Borrower’s request. The minimum aggregate principal amount of any Incremental Term Loan Commitment shall be $10,000,000, (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Term Loan Commitments pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) exceed an amount equal to the sum of (i) $75,000,000, (ii) the aggregate principal amount of voluntary prepayments of the Term Loans and any Incremental Equivalent Debt, other than prepayments from proceeds of long-term Indebtedness and (iii) any additional amount so long as on the date of incurrence of such Incremental Term Loan Commitment (subject to the terms of Section 2.17(b) below), in the case of this clause (iii), the Secured Leverage Ratio does not exceed 3.00 to 1.00 on a Pro Forma Basis (assuming the full amount available thereunder is drawn and without netting the cash proceeds thereof) with any Incremental Equivalent Debt under Section 6.01(h) being deemed to constitute Indebtedness secured on a pari passu basis with the Term Facilities for the purposes of calculating the Secured Leverage Ratio even if unsecured. The Borrower shall be deemed to have utilized the amounts under clause (ii) prior to using the amounts under clause (i) or (iii) and the Borrower shall be deemed to have utilized the amounts under clause (iii) (to the extent compliant therewith) prior to utilization of the amounts under clause (i). The Borrower may arrange for one or more banks or other financial institutions, which may include any Lenders, to provide Incremental Term Loans or increase their applicable existing Term Loans in an aggregate amount equal to the amount of the Incremental Term Loan Commitments being requested Commitment. Incremental Term Loans may be made hereunder pursuant to an amendment, supplement or amendment and restatement (which an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Loan Parties, each Lender participating in such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and the Administrative Agent. Each Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.17. Notwithstanding the foregoing, no Incremental Term Loans shall be become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Term Loan Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Borrower that, subject to the proviso set forth below, that the conditions set forth in an aggregate amount of not less than $10,000,000 Section 4.01(h)(ii)(A) and in integral multiples of $1,000,000 in excess thereof(h)(ii)(B), (ii) the date Administrative Agent shall have received documents from the Borrower consistent with those delivered on which the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Term Loan Commitments are Commitment and (iii) the Administrative Agent shall have received customary legal opinions or other certificates reasonably requested by it in connection with any such transaction; provided that, with respect to become effective any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (the “Increased Amount DateAcquisition-Related Incremental Term Loan Commitments”), clause (iiii) whether of this sentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such Limited Condition Acquisition Agreement, (2) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Term Loan Commitments are Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Term Loan Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Term Loan Commitments Commitment. Nothing contained in this Section 2.17 shall constitute, or commitments otherwise be deemed to make term loans with pricing and/or amortization terms different from be, a commitment on the part of any Lender to provide Incremental Term Loans (“Other Term Loans”)at any time.
(b) The Borrower Loan Parties and each Incremental Term Loan Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement Term Loan Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Loan Lender. Each Incremental Assumption Agreement Term Loan Amendment shall specify the terms of the applicable Incremental Term Loans; provided that that:
(i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) any commitments to make Incremental Term Loans in the form of additional Initial Term B Loans shall have the same terms as the Initial Term B Loans, and shall form part of the same Class of Initial Term B Loans or and (y) such any commitments to make Incremental Term Loans in the form of additional 2018 Incremental Term B Loans shall have the same terms as the 2018 Incremental Term B Loans made on the 2018 Incremental Amendment Effective Date, and shall form part of the same Class of 2018 Incremental Term B Loans,
(ii) [reserved],
(iii) any commitments to make Term Loans with pricing, maturity, amortization and/or other terms as different from the Initial Term B Loans or the 2018 Incremental Term B Loans (“Other Incremental Term Loans”) shall be reasonably satisfactory subject to compliance with clauses (iv) through (viii) below,
(iv) the Administrative Agent, Other Incremental Term Loans incurred pursuant to clause (iia) of this Section 2.17 shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans,
(v) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Maturity Date, (iii) the terms Date applicable to each series Term Loans in effect at the date of incurrence of such Other Incremental Term Loans, and, except as to pricing, amortization, final maturity date and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Loan Lenders in their sole discretion), the Other Incremental Term Loans shall have terms, to the extent not require any prepayment thereof in excess consistent with the Initial Term B Loans or the 2018 Incremental Term B Loans, that are not more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the pro rata share of such series relative to all Initial Term B Loans and the 2018 Incremental Term B Loans,
(including the Term Loans made on the Closing Date and all other Other Term Loans) and (ivvi) the Weighted Average Life to Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the then outstanding Term Loans. If Loans with the Applicable Margin longest remaining Weighted Average Life to Maturity,
(which, for purposes of this sentence only, vii) there shall be deemed no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments,
(viii) Other Incremental Term Loans shall not be secured by any asset of the Borrower or its Subsidiaries other than the Collateral, and
(ix) the interest rate margins and (subject to include all upfront or similar fees or original issue discount payable clause (v) above) amortization schedule applicable to all Lenders providing such the Loans made pursuant to the Incremental Term Loans, as applicable) relating to Loan Commitments shall be determined by the Borrower and the applicable Incremental Term Loan Lenders; provided that in the event that the All-in Yield for any Incremental Term Loan incurred by the Borrower under any Incremental Term Loan Commitment exceeds the Applicable Margin relating on or prior to the 12 month anniversary of the Effective Date is higher than the All-in Yield for the outstanding Initial Term B Loans or the Credit-Linked Deposits, as the case may be, hereunder immediately prior to the effectiveness incurrence of the applicable Incremental Assumption Agreement Term Loans by more than 0.25%50 basis points, then the Applicable Margin relating effective interest rate margin for the Initial Term B Loans at the time such Incremental Term Loans are incurred shall be increased to the extent necessary so that the All-in Yield for the Initial Term B Loans shall be adjusted to be is equal to the Applicable Margin relating to All-in Yield for such Incremental Term Loans minus 50 basis points, and provided further that in the event that the All-in Yield for any Incremental Term Loan incurred by the Borrower under any Incremental Term Loan Commitment minus 0.25%.
(c) Each on or prior to the 12 month anniversary of the parties 2018 Incremental Amendment Effective Date is higher than the All-in Yield for the outstanding 2018 Incremental Term B Loans hereunder immediately prior to the incurrence of the applicable Incremental Term Loans by more than 50 basis points, then the effective interest rate margin for the 2018 Incremental Term B Loans at the time such Incremental Term Loans are incurred shall be increased to the extent necessary so that the All-in Yield for the 2018 Incremental Term B Loans is equal to the All-in Yield for such Incremental Term Loans minus 50 basis points. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption AgreementTerm Loan Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f)9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.17 and any such Collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) . Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans) in the form of additional Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, Notwithstanding anything to the extent contrary, this Section 2.17 shall supersede any Incremental Term Loans are not Other Term Loans, provisions in Section 2.15 or Section 9.02 to the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanscontrary.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The At any time and from time to time prior to the Latest Maturity Date, subject to the terms and conditions set forth herein, the Borrower may, may by written prior notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to timeAgent, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from add one or more new credit facilities denominated in Dollars and consisting of one or more additional tranches of term loans (each, an “Incremental Term Facility” and the term loans extended thereunder, the “Incremental Term Loans”), provided that (i) immediately before and after giving effect to each Incremental Amendment and the applicable Incremental Term Facility, no Default or Event of Default has occurred and is continuing or would result therefrom and the representations and warranties in Article V shall be true and correct in all material respects; provided that to the extent the proceeds of any Incremental Term Facility are intended to be applied to finance a Limited Condition Acquisition, if agreed to by the Additional Incremental Lenders (which may include any existing Lender) willing to provide providing such Incremental Term Loans in their own discretion. Such notice shall set forth Facility, (ix) the amount only representations and warranties that will be required to be true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects) as of the applicable closing date for such Incremental Term Loan Commitments being requested (which Facility shall be (A) customary “specified representations” with respect to the applicable acquired company or business and (B) such of the representations and warranties made by or on behalf of the applicable acquired company or business in an aggregate amount the applicable acquisition agreement as are material to the interests of the Additional Incremental Lenders, but only to the extent that Holdings or the applicable Subsidiary has the right to terminate its obligations under such acquisition agreement or not less than $10,000,000 consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement, and in integral multiples (y) the only condition with respect to absence of $1,000,000 in excess thereof)a Default or Event of Default shall be the absence of a Default or Event of Default at the time such acquisition agreement is entered into, (ii) the date on which such amount of Incremental Term Loan Commitments are requested Facilities and Permitted Incremental Equivalent Debt as of such date shall not be greater than the Maximum Incremental Term Facilities Amount permitted to become effective (the “Increased Amount Date”)be incurred on such date, (iii) whether no Incremental Term Loans shall benefit from any Guarantees or Collateral that do not ratably benefit the Term Loans and (iv) in the event that the Yield for any Incremental Term Loans incurred in reliance on clause (b)(i) of the definition of Maximum Incremental Term Facilities Amount that are pari passu in right of payment and with respect to security with the then existing Term Loans is higher than the Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the Yield for such Initial Term Loans is equal to the Yield for such Incremental Term Loan Commitments are Loans minus 50 basis points (the “MFN Adjustment”); provided that the MFN Adjustment shall not be applicable to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the (w) any Incremental Term Loans that are incurred more than 12 months after the Closing Date, (“Other x) any Incremental Term Loans”)Loans that have a maturity date more than one year after the then applicable Latest Maturity Date and (y) Incremental Term Loans that are incurred in connection with a Permitted Acquisition or other permitted Investments. Each Incremental Term Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000, provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Facilities set forth above.
(b) The Borrower and each Each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that Facility (i) shall rank (A) pari passu in right of payment and in respect of the Other Collateral with the Obligations in respect of the Term Loans shall rank made available to the Borrower or (B) pari passu or junior in right of payment and in respect of security the Collateral with the Second Lien Loans or unsecured (and if secured, subject to the applicable Other Intercreditor Agreement), (ii) for purposes of prepayments, shall be treated no more favorably than the Initial Term Loans andLoans, in the case of an Incremental Term Facility, in each case except those that only apply after the then existing Latest Maturity Date, (iii) except as to pricing, amortization and final maturity dateotherwise required or permitted in this Section 2.15, shall have (x) such terms, if not consistent with the same terms of the Initial Term Loans, as shall be agreed by the Borrower and the Additional Incremental Lenders providing such Incremental Term Facility; provided that to the extent such terms and documentation are not consistent with the then existing Term Loans (except to the extent relating to maturity, yield, use of proceeds or (y) such other terms as availability), they shall be reasonably satisfactory to the Administrative AgentAgent (except for covenants or other provisions applicable only to the periods after the Latest Maturity Date of any then existing Term Loans or Incremental Term Loans) (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loans, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any corresponding existing Term Loans); provided further that (iiA) the no Incremental Term Facility shall have a final maturity date of any Other Term Loans shall be no earlier than the Maturity DateDate with respect to the Initial Term Loans and shall not amortize and (B) no Incremental Term Facility shall have a weighted average life that is shorter than the weighted average life of the then-remaining Initial Term Loans; provided, further, that (iii1) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans immediately preceding clauses (including the Term Loans made on the Closing Date and all other Other Term LoansA) and (ivB) the Weighted Average Life shall not apply to Maturity up to $115,000,000 of any Other Incremental Term Loans shall be no shorter than in the remaining Weighted Average Life aggregate in the sole discretion of Borrower and (2) to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to extent any Incremental Term Loan Commitment exceeds Facility is not pari passu in right of payment and in respect of the Applicable Margin relating to Collateral with the Term Loans or the Credit-Linked DepositsObligations, as it shall (except in the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such any Incremental Term Facility that is incurred as a last-out tranche) be documented pursuant to documentation other than the Loan Commitment minus 0.25%Documents.
(c) Each of notice from the parties hereto hereby agrees that, upon Borrower pursuant to this Section 2.15 shall set forth the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence requested amount and proposed terms of the relevant Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f)Facility. Any additional bank, financial institution, existing Lender or other Person that elects to provide Commitments under an Incremental Term Facility shall be reasonably satisfactory to (i) the Borrower and, (ii) if Administrative Agent would have consent rights with respect to such deemed amendment may be memorialized in writing by new lender under Section 12.04 herein were such new lender to take an assignment of Loans hereunder, the Administrative Agent with (such consent of the Borrower’s consent (Administrative Agent not to be unreasonably withheld) (any such bank, financial institution, existing Lender or other Person being called an “Additional Incremental Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, such Additional Incremental Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and furnished (to the extent it affects the rights or increases the obligations of the Administrative Agent, the Administrative Agent). No Lender shall be obligated to provide any Commitments under an Incremental Term Facility, unless it so agrees (and any Lender that does not respond shall be conclusively presumed not to agree to provide additional Commitments). Commitments in respect of any Incremental Term Facilities shall become Commitments under this Agreement. An Incremental Amendment may, without the consent of any other parties heretoLenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Incremental Lenders comparable to the provisions of Section 12.12 or any changes to Section 2.04 necessary to ensure such Incremental Term Facilities are fungible with the existing Term Loan if such facility is intended to be of the same Class as the relevant existing Term Loan). The proceeds of any Loans under an Incremental Term Facility will be used, directly or indirectly, for working capital and/or general corporate purposes and/or any other purposes not prohibited hereunder (including, without limitation, Restricted Payments and acquisitions).
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment This Section 2.15 shall become effective under this supersede any provisions in Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, 2.08 or 12.12 to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingcontrary.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Samples: First Lien Credit and Guarantee Agreement (Janus International Group, Inc.)
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right, by written notice to in consultation and coordination with the Administrative Agent (signed by a Responsible Officer as to all of the Borrower) matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time, request time that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 after the Closing Date and all Indebtedness incurred pursuant to Section 10.04(xxvii)(A) shall not exceed the sum of (x) $325,000,000 plus (y) the sum of all voluntary prepayments of Term Loans, Refinancing Notes and Indebtedness incurred pursuant to Section 10.04(xxvii) that ranks pari passu with the Term Loans (limited, in an aggregate amount not the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to exceed $80,000,000 from one such Refinancing Notes or more Incremental Term Lenders other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) (which may include in each case other than with the proceeds of long-term Indebtedness (other than Indebtedness under the ABL Credit Agreement)) in each case prior to the date of incurrence of any existing Lender) willing to provide such Incremental Term Loans Loan Commitments plus (z) an unlimited amount (a “Ratio-Based Incremental Facility”) so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of such date would not exceed 3.05 to 1.00 (it being understood that the Borrower may utilize amounts under clause (z) prior to amounts under clause (x) and that amounts under both clauses may be used in their own discretion. Such notice shall set forth a single transaction), (ivi) the amount proceeds of all Incremental Term Loans incurred by the Borrower may be used for any purpose not prohibited under this Agreement, (vii) each Incremental Term Loan Commitment Agreement shall specifically designate, with the approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofSection 2.15(c) are satisfied), (iiviii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on which a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit L (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued at the Applicable Margin relating Borrower’s expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately;
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by ; and
(iv) the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making Effective Yield of such Incremental Term Loans shall be ratably increased by would not result in an increase in the aggregate principal amount of Applicable Margins for the Initial Term Loans (assuming for this purpose, that such Incremental Term Loans had been incurred as a new Tranche of Incremental Term Loans). To the extent the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Term Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Term Loans of such Tranche and which will end on the last day of such Interest Period). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right, by written notice but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Syndication Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) satisfactory to the Administrative Agent (signed by a Responsible Officer of the Borrowerwith such consent not to be unreasonably withheld) from time to time, request provide Incremental Term Loan CommitmentsCommitments to the Borrower and, subject to the Incremental Commitment Requirements, the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the respective Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Commitment Agreement, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Borrower, unless and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent and the Borrower an Incremental Term Loan Commitment Agreement as provided in clause (b) of this Section 1.14, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in Dollars, (iv) the amount of the each Tranche of Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of Incremental Term Loans (including Eligible Transferees who will become Lenders) of at least $50,000,000, (v) the aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which such all Incremental Term Loan Commitments are requested provided pursuant to become effective (the “Increased Amount Date”)this Section 1.14, shall not exceed $100,000,000, (iiivi) whether such each Tranche of Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with (I) mature on the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Loan Maturity Date, (iiiII) the terms applicable have a Weighted Average Life to each series Maturity of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) no less than the Weighted Average Life to Maturity of any Other as then in effect for the Term Loans shall and (III) be no shorter than subject to the remaining Weighted Average Life to Maturity Applicable Margins as are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans, provided that if there are Term Loans outstanding on the date of the incurrence of such Tranche of Incremental Term Loans. If Loans (immediately before giving effect thereto), and if the Applicable Margin Margins for such Tranche of Incremental Term Loans (which, for such purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount (amortized over the life of such Tranche of Incremental Term Loans) payable to all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans) determined as applicableof the initial funding date for such Tranche of Incremental Term Loans would exceed the Applicable Margin then applicable to Term Loans (determined on the same basis as provided in the preceding parenthetical) relating by more than 0.25% per annum, then the Applicable Margin then applicable to Term Loans shall be automatically increased to the extent necessary such that the Applicable Margin then applicable to Term Loans will be 0.25% per annum less than the Applicable Margin applicable to such Tranche of Incremental Term Loans, (vii) the proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 6.25(c), (viii) each Incremental Term Loan Commitment Agreement shall specifically designate the Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans or Term Loans) unless the requirements of Section 1.14(c) are satisfied), (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the Pledge Agreement, and guaranteed under the Subsidiaries Guaranty, on a pari passu basis with all other Obligations secured by the Pledge Agreement and guaranteed under the Subsidiaries Guaranty, and (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitment Agreement as provided in Section 1.01(c) and such Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 1.14, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Term Loan Commitment Agreement, with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date set forth in such Incremental Term Loan Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.14 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Term Loan Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement, and at such time, (i) Schedule I shall be deemed modified to reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued, at the Applicable Margin relating Borrower’s expense, to such Incremental Term Loan Lender in conformity with the requirements of Section 1.05.
(c) Notwithstanding anything to the contrary contained above in this Section 1.14, the Incremental Term Loans Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, C-1, C-2, C-3, etc.), provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Incremental Term Loans or the outstanding Tranche of Term Loans, in either case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Applicable Margins as the Tranche of Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayments as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 1.09, such new Incremental Term Loans shall be ratably increased by added to (and form part of) each Borrowing of outstanding Loans of the aggregate principal amount respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Loans of the respective Tranche. To the extent the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term LoansLoans to the then outstanding Borrowings of Eurodollar Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Eurodollar Loans of such Tranche and which will end on the last day of such Interest Period). In connection therewith, the Borrower hereby agrees to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Eurodollar Loans during an existing Interest Period on such basis as may be agreed by the Borrower and the respective Lender or Lenders as may be provided in the respective Incremental Term Loan Commitment Agreement.
Appears in 1 contract
Samples: Credit Agreement (Usi Holdings Corp)
Incremental Term Loan Commitments. (a) The Borrower mayParent shall have the right, by written notice to in consultation and coordination with the Administrative Agent (signed by a Responsible Officer as to all of the Borrower) matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time, request time that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders (it being understood that the Parent shall have no obligation to seek commitments in respect of Incremental Term Loans from existing Lenders)) provide Incremental Term Loan CommitmentsCommitments to the Borrowers and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Parent, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000 (or, if less, the remaining available amount), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 after the Closing Date and all Indebtedness incurred pursuant to Section 10.04(xxvii)(A) shall not exceed at the time of incurrence thereof the sum of (x) $50,000,000, plus (y) the sum of all voluntary prepayments of Term Loans, Refinancing Notes and Indebtedness incurred pursuant to Section 10.04(xxvii) that ranks pari passu with the Term Loans (limited, in an aggregate amount not the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to exceed $80,000,000 from one such Refinancing Notes or more Incremental Term Lenders other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) (which may include any existing Lenderin each case other than (1) willing to provide the extent such Incremental Term Loans were obtained pursuant to clause (z) below or (2) to the extent funded with the proceeds of long-term Indebtedness (other than Indebtedness under the ABL Credit Agreement)) in their own discretion. Such notice shall set forth each case prior to the date of incurrence of any such Incremental Term Loan Commitments plus (iz) an unlimited amount (a “Ratio-Based Incremental Facility”) so long as, in the case of this clause (z) only, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which Section 9.01 Financials were required to have been delivered, would not exceed 1.50 to 1.00 (it being understood that the Borrowers may utilize amounts under clause (z) prior to amounts under clause (x) or clause (y) and that amounts under both clauses may be used in a single transaction), (vi) the amount proceeds of all Incremental Term Loans incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vii) each Incremental Term Loan Commitment Agreement shall specifically designate, with the approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofSection 2.15(c) are satisfied), (iiviii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin”; provided, further, (A) if any Incremental Term Loans, which are secured by a Lien on which the Collateral ranking pari passu with the Lien on the Collateral securing the Indebtedness hereunder, include a LIBO Rate or Base Rate floor that is greater than the LIBO Rate or Base Rate floor applicable to the existing Term Loans, such differential between interest rate floors shall be included in the calculation of Effective Yield but only to the extent an increase in the LIBO Rate or Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder and (B) to the extent any increase in the Effective Yield on the existing Term Loans is required pursuant to the immediately preceding proviso, such increase shall be effected first through an increase in the LIBO Rate or Base Rate floor applicable to such existing Term Loans in an amount equal to the amount of the differential indicated in the foregoing clause (A) with any remaining required increase effected pursuant to an increase the Applicable Margin to the extent required by the definition thereof, and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrowers shall be Obligations of the Borrowers under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on a pari passu or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrowers, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit L (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued at the Applicable Margin relating Borrowers’ expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrowers, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately;
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by ; and
(iv) the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making Effective Yield of such Incremental Term Loans shall be ratably increased by would not result in an increase in the aggregate principal amount of Applicable Margins for the Initial Term Loans (assuming for this purpose, that such Incremental Term Loans had been incurred as a new Tranche of Incremental Term Loans). To the extent the provisions of the preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Term Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Term Loans of such Tranche and which will end on the last day of such Interest Period). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation So long as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall then exists or would result therefrom, the Borrower shall, in consultation with the Administrative Agent, have occurred the right to request on one or more occasions after the Closing Date and be continuing.
(e) Each of prior to the Maturity Date that the Lenders or other Persons qualifying as Eligible Assignees, provide Incremental Term Loan Commitments and, subject to the terms and conditions contained in this Agreement and the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto. Notwithstanding the foregoing, the parties hereto hereby agrees that the Administrative Agent may take any understand and all action as may be reasonably necessary to ensure agree that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any request by the Borrower, until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment as evidenced by its execution of and delivery to the Administrative Agent of an Incremental Term Loan Commitment Agreement as provided in Section 2.01(e) and (y) the other conditions set forth in Section 2.01(e) shall have been satisfied, (ii) any Lender or any other Person that will qualify as an Eligible Assignee may provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each provision of Incremental Term Loan Commitments pursuant to this Section 2.01(d) for any Lender shall be in an amount of at least $1,000,000, (iv) the aggregate amount of all Incremental Term Loan Commitments permitted to be provided hereunder and the aggregate principal amount of all Incremental Term Loans permitted to be made hereunder shall not, in either case, exceed FOUR HUNDRED MILLION DOLLARS (other than Other $400,000,000) minus the aggregate principal amount of the Term LoansLoan funded to consummate the Titan Acquisition, if any, (v) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply Applicable Rate with respect to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any such Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof fees payable to any Lender providing an Incremental Term Loan Commitment shall be as set forth in the relevant Incremental Term Loan Commitment Agreement, (vi) in no event shall the Maturity Date of such Incremental Term Loan be earlier than the Maturity Date of the Revolving Loans, (vii) the scheduled principal payments with respect to the Incremental Term Loans shall be as set forth in the applicable Incremental Assumption Term Loan Commitment Agreement. In addition, provided that in no event shall the weighted average life to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making maturity of such Incremental Term Loans Loan be less than three (3) years, (viii) the applicable Incremental Term Loan shall only be ratably increased by the aggregate principal amount of permitted hereunder if after giving effect to such Incremental Term LoansLoan on a Pro Forma Basis, (a) the Consolidated Leverage Ratio calculated on a Pro Forma Basis would not exceed 2.25 to 1.00, and (b) no Default or Event of Default exists immediately after giving effect to such Incremental Term Loan, and (ix) all actions taken by the Borrower pursuant to this Section 2.01(d) and Section 2.01(e) shall be done in coordination with the Administrative Agent.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right to request, at any time after the Effective Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide commitments to increase the aggregate principal amount of any existing Tranche of Term Loans or to establish one or more new Tranches of Term Loans (such Term Loans, the “Incremental Term Loans”) to the Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent and the Borrower an Incremental Term Loan Commitment Agreement as provided in clause (signed by b) of this Section 2.14, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Eligible Transferees who will become a Responsible Officer Lender) may so provide an Incremental Term Loan Commitment without the consent of the Borrowerany other Lender, (iii) from time to time, request each Tranche of Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such and all Incremental Term Loans to be made pursuant thereto, shall be denominated in their own discretion. Such notice shall set forth Dollars, (iiv) the amount of the each Tranche of Incremental Term Loan Commitments (whether constituting a new Tranche of Incremental Term Loans or being requested added to (which and thereafter constituting a part of) a then outstanding Tranche of Term Loans) shall be in an a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of not less than Incremental Term Loans (including Eligible Transferees who will become Lenders) of at least $10,000,000 (or such lower amount as may be reasonably acceptable to the Administrative Agent) and in integral multiples of $1,000,000 2,500,000 in excess thereofthereof (or such other integral multiple as may be reasonably acceptable to the Administrative Agent), (iiv) the date on which aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.14 and the aggregate principal amount of all Incremental Term Loans to be made pursuant thereto shall not, together with the aggregate principal amount of all Indebtedness incurred pursuant to Section 10.04(iii)(B) and all Incremental Equivalent Debt incurred pursuant to Section 10.04(xv), exceed $50,000,000, (vi) the up-front fees and, if applicable, any unutilized commitment fees and/or other fees, payable to each Incremental Term Loan Lender in respect of each Incremental Term Loan Commitment shall be separately agreed to by the Borrower and each such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”)Lender, (iiivii) whether the Borrower and its Subsidiaries shall be in compliance with the financial covenant set forth in Section 10.13(i) and the Total Leverage Ratio shall not exceed 3.50 to 1.00, in each case, on a pro forma basis after giving effect to such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from Loans as of the most recently ended Test Period, (viii) each Tranche of Incremental Term Loans shall (“Other Term Loans”).
(bA) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent have an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment Maturity Date of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Initial Term Loan Maturity Date, (iiiB) the terms applicable have a Weighted Average Life to each series Maturity of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) no less than the Weighted Average Life to Maturity of any Other as then in effect for the Initial Term Loans shall and (C) be no shorter than subject to the remaining Weighted Average Life to Maturity Applicable Margins as are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of the Incremental Term Loans. If ; provided that, if the Applicable Margin Margins for such Tranche of Incremental Term Loans (which, for such purposes of this sentence only, shall be deemed to include all upfront up-front or similar fees or original issue discount (amortized over four years) payable to all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans and any Eurodollar Rate floor or Base Rate floor applicable to such Incremental Term Loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared generally with all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans) determined as of the initial funding date for such Tranche of Incremental Term Loans exceeds the Applicable Margins (which, for such purposes only, shall be deemed to include all up-front or similar fees or original issue discount originally payable to all Lenders providing the Initial Term Loans or any Incremental Term Loans theretofore incurred and any Eurodollar Rate floor or Base Rate floor applicable to the Initial Term Loans or such Incremental Term Loans, as applicable) relating to any Incremental the Initial Term Loan Commitment exceeds Loans by more than 0.50%, then the Applicable Margin Margins relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Initial Term Loans shall be adjusted to be equal to the Applicable Margin Margins (determined as provided above) relating to such Tranche of Incremental Term Loans minus 0.50%, (ix) the proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 8.08(b), (x) each Incremental Term Loan Commitment Agreement shall specifically designate the Tranche or Tranches of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as the Initial Term Loans or any other then existing Tranche of Term Loans) unless the requirements of Section 2.14(c) are satisfied), (xi) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the Security Documents, and guaranteed under the Guaranties, on a pari passu basis with all other Obligations secured by the Security Documents and guaranteed under the Guaranties, (xii) each Lender (including any Eligible Transferees who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitment Agreement and such Incremental Term Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents, and (xiii) other terms may differ if reasonably satisfactory to the Administrative Agent and the Borrower.
(b) At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.14, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Term Loan Commitment Agreement, with the effectiveness of the Incremental Term Loan Commitment provided therein and the making of the respective Incremental Term Loans thereunder to occur on the date set forth in such Incremental Term Loan Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.14 shall have been satisfied (or waived in writing by the Required Lenders prior to the incurrence of such Incremental Term Loan Commitments), and (z) all other conditions precedent that may be set forth in such Incremental Term Loan Commitment Agreement shall have been satisfied (or waived in writing by the Lenders providing such Incremental Term Loan Commitments). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement, and at such time, (i) Schedule 1.01-A to the Disclosure Letter shall be deemed modified to reflect the Incremental Term Loan Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Term Loan Lender, Incremental Term Notes will be issued, at the Borrower’s expense, to such Incremental Term Loan Lender in conformity with the requirements of Section 2.05.
(c) Notwithstanding anything to the contrary contained above in this Section 2.14, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or Incremental Term Loan Lenders, as the case may be, pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof i.e., X-0, X-0, X-0, X-0, X-0, X-0, C-1, C-2, C-3, etc.), provided that, with the consent of the Administrative Agent, the parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, a then outstanding Tranche of Term Loans so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended have the same Maturity Date and shall have the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added; provided, however, if the up-front fees and/or original issue discount (amortized over the shorter of (x) the life of such Tranche of Incremental Term Loans and (y) four years) payable to each Incremental Term Loan Lender providing such Tranche of Incremental Term Loans exceeds the up-front fees and/or original issue discount (amortized over the shorter of (x) the life of such Tranche of Term Loans and (y) four years) originally payable to the extent (but only Lenders that provided the Tranche of Term Loans to which such Incremental Term Loans are to be added by more than 0.50%, then the Applicable Margins for such Tranche of Term Loans shall be increased as, and to the extent) , necessary to reflect the existence and terms eliminate any such deficiency in excess of the 0.50%; provided, further, that if any Eurodollar Rate floor or Base Rate floor applicable to such Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any Loans exceeds the Eurodollar Rate floor or Base Rate floor applicable to the Tranche of Term Loans to which such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not Incremental Term Loans are to be unreasonably withheld) and furnished added, the Eurodollar Rate floor or Base Rate floor applicable to such Tranche of Term Loans shall be increased so that the other parties hereto.applicable floor is the same;
(dii) Notwithstanding the foregoing, no new Incremental Term Loans to be made pursuant to such Incremental Term Loan Commitment Agreement shall become effective under this Section 2.20 unless have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Tranche of Term Loans to which such new Incremental Term Loans are being added (iwith the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same, on a pro rata basis, as is theretofore applicable to the Tranche of Term Loans to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Term Loan Repayments of the respective Tranche of Term Loans); and
(iii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basisbasis (based on the relative sizes of the various outstanding Borrowings), so that each applicable Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Lenders making new Incremental Term Loans add such Incremental Term Loans to ABR the then outstanding Borrowings of Eurodollar Loans reasonably required by of the Administrative Agent to respective Tranche of Term Loans, it is acknowledged that the effect the foregoing. If any thereof may result in such new Incremental Term Loan is Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to be allocated outstanding Eurodollar Loans of the respective Tranche and which will end on the last day of such Interest Period). In connection therewith, the Borrower hereby agrees to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Eurodollar Loans during an existing Interest Period for a LIBO Rate Loanon such basis as may be agreed by the Borrower and the respective Lender or Lenders as may be provided in the respective Incremental Term Loan Commitment Agreement. The Incremental Term Loan Agreement may, then with the interest rate thereon for consent of the Borrower and the Administrative Agent, but without the consent of any other Credit Party or the Lenders, effect such Interest Period amendments to this Agreement and the other economic consequences thereof shall Credit Documents as may be as set forth necessary or appropriate, in the applicable Incremental Assumption Agreement. In additionreasonable opinion of the Administrative Agent and the Borrower, to effect the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under provisions of this Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans2.14.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Arc Document Solutions, Inc.)
Incremental Term Loan Commitments. (a) The Lead Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) may at any time and from time to time, time request that one or more Lenders (or one or more Eligible Transferees who will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrowers and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Amendment, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by Lead Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Amendment shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate principal amount of any Incremental Term Loans on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Term Loans incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vii) Lead Borrower shall specifically designate, in consultation with the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof)Incremental Term Loans, (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”or other Term Loans), (iiiunless the requirements of Section 2.15(c) whether such Incremental Term Loan Commitments are to satisfied), which designation shall be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of set forth in the applicable Incremental Term Loan Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans; provided that (i) the Other , such Incremental Term Loans shall rank pari passu or junior in right have the same terms as each other Tranche of payment and of security with the Term Loans andas in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to pricingpurpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization and final maturity dateof such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (xa) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity (in each case of the foregoing clauses (a) and (b), excluding for this purpose, interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the requirements of this clause (I)), (II) the same Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Amendment; provided, however, that if the Effective Yield for any such Incremental Term Loans incurred prior the date that is six (6) months after the First Restatement Effective Date, exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.75% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or (y) such other terms as shall be are otherwise reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (iix) all Incremental Term Loans (and all interest, fees and other than Other Term Loansamounts payable thereon) in incurred by the form Borrowers shall be Obligations of additional Term Loansthe Borrowers under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, when originally madeand guaranteed under each relevant Guaranty, are included in each Borrowing of outstanding on a pari passu basis with all other Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required secured by the Administrative Agent Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to effect the foregoing. If any provide an Incremental Term Loan is Commitment pursuant to an Incremental Term Loan Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Amendment as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to be allocated to an existing Interest Period Incremental Term Loans under such Tranche for a LIBO Rate Loan, then the interest rate thereon for such Interest Period all purposes of this Agreement and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Credit Documents and (xi) all Incremental Term Loans Loan Commitment Requirements are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanssatisfied.
Appears in 1 contract
Samples: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Incremental Term Loan Commitments. (a) The Parent Borrower mayshall have the right at any time and from time to time after the Effective Date and prior to the Incremental Term Loan Termination Date to request (so long as no Default of Event of Default is then in existence or would result therefrom) on one or more occasions that one or more Lenders (and/or one or more other Persons which will become Lenders as provided pursuant to clause (vi) below) provide Incremental Term Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant to Section 1.01(b); it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any request by written notice the Parent Borrower, (ii) until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan CommitmentsCommitment Agreement in respect thereof as provided in Section 1.14(b) and (y) such other conditions set forth in Section 1.14(b) shall have been satisfied, in an aggregate amount such Lender shall not be obligated to exceed $80,000,000 from one or more Incremental Term Lenders (which may include fund any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount excess of the Incremental Term Loan Commitments being requested (which shall be amounts provided for in an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (iiSection 1.01(a) the date on which before giving effect to such Incremental Term Loan Commitments are requested provided pursuant to become effective (the “Increased Amount Date”)this Section 1.14, (iii) whether any Lender (and/or one or more other Persons which will become Lenders as provided pursuant to clause (vi) below) may so provide an Incremental Term Loan Commitment without the consent of any other Lender (it being understood and agreed that the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if any such Incremental Term Loan Commitments are to be provided by a Person which is not already a Lender), (iv) (x) each provision of Incremental Term Loan Commitments on a given date pursuant to this Section 1.14 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (vi) below, banks or commitments other financial institutions who will become Lenders)) of at least $1,000,000 and (y) the aggregate amount of Incremental Term Loan Commitments provided pursuant to make term loans this Section 1.14 shall not exceed $7,857,143.86, (v) the up-front fees payable to any Lender providing an Incremental Term Loan Commitment shall be as set forth in the relevant Incremental Term Loan Commitment Agreement, (vi) if, on or after the tenth Business Day following the request by the Parent Borrower of the then existing Lenders (other than Defaulting Lenders) to provide Incremental Term Loan Commitments pursuant to this Section 1.14 on the terms to be applicable thereto, the Parent Borrower has not received Incremental Term Loan Commitments in an aggregate amount equal to that amount of the Incremental Term Loan Commitments which the Parent Borrower desires to obtain pursuant to such request (as set forth in the notice provided by the Borrower to the Administrative Agent as provided above), then the Parent Borrower may request Incremental Term Loan Commitments from other banks or financial institutions in aggregate amount equal to such deficiency on terms which are no more favorable to such other bank or financial institution in any respect than the terms offered to the Lenders, and (vii) all actions taken by the Parent Borrower pursuant to this Section 1.14 shall be done in coordination with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)Administrative Agent.
(b) The Borrower At the time of any provision of Incremental Term Loan Commitments pursuant to this Section 1.14, (i) the Parent Borrower, the Administrative Agent and each such Lender or other bank or financial institution which agrees to provide an Incremental Term Lender Loan Commitment (each, an "Incremental Term Loan Lender") shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement substantially in the form of Exhibit F hereto, subject to such modifications in form and such other documentation as substance reasonably satisfactory to the Administrative Agent shall reasonably specify to evidence as may be necessary or appropriate (with the effectiveness of such Incremental Term Loan Lender's Incremental Term Loan Commitment to occur upon delivery of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify to the terms Administrative Agent, the payment of any fees required in connection therewith and the satisfaction of the applicable other conditions in this Section 1.14 to the reasonable satisfaction of the Administrative Agent), (ii) the Parent Borrower shall deliver to the Administrative Agent resolutions authorizing the incurrence of Incremental Term Loans; provided that Loans to be incurred pursuant to each Incremental Term Loan Agreement, together with evidence of good standing of the Parent Borrower (iif requested) and (iii) the Other Term Loans Parent Borrower shall rank pari passu or junior deliver to the Administrative Agent an opinion, in right of payment form and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be substance reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating from counsel to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior Parent Borrower reasonably satisfactory to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not and dated such date, covering such matters similar to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions those set forth in paragraphs (bthe opinion of counsel delivered to the Lenders on the Effective Date pursuant to Section 4.01(b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) matters as the Administrative Agent may reasonably require request. The Administrative Agent shall promptly notify each Lender as to assure that the occurrence of each Incremental Term Loans are secured Loan Commitment Date, and (x) on each such date Annex I shall be deemed modified to reflect the revised Term Loan Commitments of the affected Lenders and (y) upon surrender of any old Term Notes by the Collateral ratably with respective Incremental Term Loan Lender (or, if lost, a standard lost note indemnity in form and substance reasonably satisfactory to the Parent Borrower), to the extent agreed requested by the applicable any Incremental Term Lenders in Loan Lenders, a new Term Note will be issued, at the applicable Incremental Assumption AgreementParent Borrower's expense, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans Lender, to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the new revised Term Loan Commitments and/or Term Loans made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to by such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingLenders.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Samples: Term Loan Agreement (Endurance Specialty Holdings LTD)
Incremental Term Loan Commitments. (a) The After the Closing Date has occurred, the Borrower Representative may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, Commitments in an aggregate amount not to exceed $80,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Incremental Term Lenders (which may include any existing Lender, but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term Loans in their own sole discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate minimum increments of $5,000,000 and a minimum amount of not less than $10,000,000 and 10,000,000, or equal to the remaining Incremental Amount or, in integral multiples of $1,000,000 in excess thereofeach case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or (x) commitments to make term loans with pricing terms identical to (and which shall together with any then outstanding Term B-1 Loans, as applicable, form a single Class of) the Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or amortization other terms different from the Term B-1 Loans (“Other Incremental Term Loans”).
(b) The applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that provided, that:
(i) any commitments to make additional Term B-1 Loans shall have the same terms as the Term B-1 Loans, and shall form part of the same Class of Term B-1 Loans;
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or junior equally and ratably in right of payment and of security with the existing Term Loans;
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Maturity Date applicable to the Term Loans in effect at the date of incurrence of such Other Incremental Term Loans and, except as to pricing, amortization and amortization, final maturity datedate and participation in mandatory prepayments (which shall, subject to the other clauses of this proviso, be determined by the applicable Borrower and the applicable Incremental Term Lenders in their sole discretion), shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) ; provided that if the final maturity date Effective Yield of any Other Incremental Term Loan exceeds the Effective Yield of the Term B-1 Loans by more than 50 basis points, the Applicable Margin for the Term B-1 Loans shall be no earlier than increased to the Maturity Dateextent necessary so that, after giving effect to such increase, the Effective Yield of the Term B-1 Loans is equal to the Effective Yield of such Incremental Term Loans minus 50 basis points (iii) this proviso, the terms “MFN Protection”); provided, further, that the MFN Protection shall not be applicable to each series of Other any Incremental Term Loans shall not require any prepayment thereof in excess of that are incurred more than six (6) months after the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and Amendment No. 1 Effective Date;
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If Loans with the Applicable Margin longest remaining Weighted Average Life to Maturity;
(which, for purposes of this sentence only, v) [reserved];
(vi) such Other Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B-1 Loans in any mandatory prepayment hereunder;
(vii) there shall be deemed to include all upfront no borrower (other than a Borrower) or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicableguarantor (other than the Loan Parties) relating to in respect of any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Commitments; and
(viii) Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall not be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) secured by any asset of Parent or its Subsidiaries other than then Collateral. Each of the parties party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the BorrowerBorrower Representative’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 2.21 unless (i) on no Default or Event of Default shall exist; provided, that in the date event that any tranche of Incremental Term Loans is used to finance a Permitted Acquisition, to the extent the Incremental Term Lenders participating in such effectivenesstranche of Incremental Term Loans agree, the conditions foregoing clause (i) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Acquisition (provided, that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such tranche of Incremental Term Loans); (ii) the representations and warranties of the applicable Borrower set forth in paragraphs this Agreement shall be true and correct in all material respects (bother than to the extent qualified by materiality or “Material Adverse Effect,” in which case, such representations and warranties shall be true and correct); provided, that in the event that the tranche of Incremental Term Loans is used to finance a Permitted Acquisition and to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (ii) shall be limited such that the availability of such Incremental Term Loans shall only be subject to the accuracy of customary “specified representations” and those representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Permitted Acquisition that are material to the interests of the Lenders and only to the extent that Parent or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a result of a failure of such representations to be accurate; and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (iiiii) the Administrative Agent shall have received customary documents and legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, opinions consistent with those delivered on the Closing Date under Section 4.01 and as to such additional customary documents and filings (including amendments matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable effectiveness of each Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(ed) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans) in the form of additional Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis. The Borrower agrees Borrowers agree that Section 2.16 shall apply to any conversion of LIBO Rate Term SOFR Loans to ABR Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The After the Closing Date has occurred, the Borrower Representative may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, Commitments in an aggregate amount not to exceed $80,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Incremental Term Lenders (which may include any existing Lender, but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term Loans in their own sole discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate minimum increments of $5,000,000 and a minimum amount of not less than $10,000,000 and 10,000,000, or equal to the remaining Incremental Amount or, in integral multiples of $1,000,000 in excess thereofeach case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or (x) commitments to make term loans with pricing terms identical to (and which shall together with any then outstanding Initial Term B-1 Loans, as applicable, form a single Class of) the Initial Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or amortization other terms different from the Initial Term B-1 Loans (“Other Incremental Term Loans”).
(b) The applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans andprovided, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.:
Appears in 1 contract
Incremental Term Loan Commitments. (a) The So long as no Default or Event of Default then exists or would result therefrom, the Borrower mayshall, by written notice to in consultation with the Administrative Agent (signed by a Responsible Officer of Agent, have the Borrower) from time right to time, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from on one or more Incremental Term occasions after the Closing Date and prior to the Maturity Date that the Lenders (which may include any existing Lender) willing to or other Persons qualifying as an Eligible Assignee, provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be and, subject to the terms and conditions contained in an aggregate amount of not less than $10,000,000 this Agreement and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which such relevant Incremental Term Loan Commitments are requested Commitment Agreement, make Incremental Term Loans pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to become effective (the “Increased Amount Date”), (iii) whether such provide an Incremental Term Loan Commitments are Commitment as a result of any request by the Borrower, until such time, if any, as (x) such Lender has agreed in its sole discretion to be provide an Incremental Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower Commitment and each Incremental Term Lender shall execute executed and deliver delivered to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement as provided in Section 2.01(d) and such (y) the other documentation conditions set forth in Section 2.01(d) shall have been satisfied, (ii) any Lender or any other Person which will qualify as the Administrative Agent shall reasonably specify to evidence the an Eligible Assignee may provide an Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify without the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date consent of any Other Term Loans shall be no earlier than the Maturity Dateother Lender, (iii) the terms applicable each provision of Incremental Term Loan Commitments pursuant to each series this Section 2.01(c) for any Lender shall be in an amount of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and at least $5,000,000, (iv) the Weighted Average Life to Maturity aggregate amount of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds Commitments permitted to be provided hereunder and the aggregate principal amount of all Incremental Term Loans permitted to be made hereunder shall not, in either case, exceed TWO HUNDRED MILLION DOLLARS ($200,000,000), (v) the Applicable Margin relating Rate with respect to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to any such Incremental Term Loan Commitment minus 0.25%.
(c) Each of and the parties hereto hereby agrees that, upon the effectiveness of fees payable to any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Lender providing an Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions be as set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement andTerm Loan Commitment Agreement, (vi) in no event shall the Maturity Date of such Incremental Term Loan be earlier than the Maturity Date of the Revolving Loans or the Term Loan, (vii) the scheduled principal payments with respect to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Term Loan Commitment Agreement. In addition, provided that in no event shall the weighted average life to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making maturity of such Incremental Term Loan be less than the weighted average life to maturity of the Revolving Loans or the Term Loan, (viii) the applicable Incremental Term Loan shall only be ratably increased by the aggregate principal amount of permitted hereunder if after giving effect to such Incremental Term LoansLoan on a Pro Forma Basis, (a) the Consolidated Senior Leverage Ratio calculated on a Pro Forma Basis is at least 0.25 less than the ratio required to be maintained at such time by Section 8.11(a), and (b) the Loan Parties are in compliance with Section 8.11, and (ix) all actions taken by the Borrower pursuant to this Section 2.01(c) and Section 2.01(d) shall be done in coordination with the Administrative Agent.
(rr) A new Section 2.01(e) is hereby added after Section 2.01(d) and shall read as follows:
Appears in 1 contract
Incremental Term Loan Commitments. 2.1. Each Additional Term Lender hereto agrees to provide the 2022-2 Incremental Term Loan Commitments on the Incremental Effective Date and to fund the 2022-2 Incremental Term Loans thereunder on the Incremental Closing Date, in an amount equal to such 2022-2 Incremental Term Loan Commitment amount set forth next to such Additional Term Lender’s name on Schedule I hereto under the caption “2022-2 Incremental Term Loan Commitment”.
2.2. Except as otherwise expressly set forth herein and in the Amended Credit Agreement, the 2022-2 Incremental Term Loans shall have terms that are identical to those of the Existing Term A-1 Loans. Effective as of the Incremental Closing Date, the 2022-2 Incremental Term Loans shall constitute the same Class of Term Loans as the Existing Term A-1 Loans and shall be fungible with the Existing Term A-1 Loans. Except as necessary to give effect to the provisions of Section 2.3 through 2.6 below, (a) the 2022-2 Incremental Term Loans shall be “Loans”, “Term Loans”, “Term A-1 Loans” and “Incremental Term Loans” and (b) the 2022-2 Incremental Term Loan Commitments shall be “Commitments”, “Term Loan Commitments”, “Term A-1 Loan Commitments” and “Incremental Term Loan Commitments”, in each case, for all purposes of the Credit Agreement and the other Loan Documents. The Borrower may2022-2 Incremental Term Loans may be repaid or prepaid in the same manner as the Existing Term A-1 Loans in accordance with the provisions of the Credit Agreement and this Agreement, by written but once repaid or prepaid may not be reborrowed.
2.3. The aggregate principal amount of the 2022-2 Incremental Term Loans made on the Incremental Closing Date shall be $240,000,000.
2.4. The Maturity Date in respect of the 2022-2 Incremental Term Loans (the “2022-2 Incremental Term Loan Maturity Date”) shall be the Maturity Date in respect of the Existing Term A-1 Loans as set forth in the definition “Term Loan Maturity Date” in the Credit Agreement.
2.5. The 2022-2 Incremental Term Loans shall accrue interest on the same basis, and with the same Base Rate Margin, RFR Margin or Term Benchmark Margin, as applicable, as the Existing Term A-1 Loans (it being understood that, as of the Incremental Closing Date, the 2022-2 Incremental Term Loans shall constitute the same Type of Loans as the Existing Term A-1 Loans and, to the extent the Existing Term A-1 Loans are Term Benchmark Loans, have an initial Interest Period ending on the last day of the Interest Period applicable to the Existing Term A-1 Loans).
2.6. Commencing with the first fiscal quarter ending after the Incremental Closing Date, the 2022-2 Incremental Term Loans shall be repayable in equal quarterly installments such that the amount repaid in each such quarterly installment is equal to 1.25% (or such higher percentage as may be necessary to make the 2022-2 Incremental Term Loans fungible with the Term A-1 Loans outstanding immediately prior to the Incremental Closing Date) of the original aggregate principal amount of the 2022-2 Incremental Term Loans (as such amounts may be reduced pursuant to Section 6.2 of the Credit Agreement) on the same dates as for the Existing Term A-1 Loans as set forth in Section 6.3 of the Credit Agreement. The balance of the 2022-2 Incremental Term Loans will be repayable on the 2022-2 Incremental Term Loan Maturity Date.
2.7. Except as expressly set forth herein, the 2022-2 Incremental Term Loans shall have the same terms and conditions as the Existing Term A-1 Loans and shall be “Term A-1 Loans” for all purposes under the Credit Agreement and the other Loan Documents.
2.8. With respect to the 2022-2 Incremental Term Loans, this Agreement is an Incremental Assumption Agreement referred to in Section 6.1.3(b) of the Existing Credit Agreement. The parties hereto agree that this Agreement constitutes the notice required pursuant to Section 6.1.3(a) of the Existing Credit Agreement.
2.9. To the extent the Incremental Closing Date has not occurred prior to February 15, 2023 (such later date, the “Term Loan A Ticking Fee Commencement Date”), Parent agrees to pay to the Administrative Agent (signed by a Responsible Officer Agent, for the ratable benefit of the BorrowerAdditional Term Lenders, a ticking fee (the “Term Loan A Ticking Fee”) from time commencing on the Term Loan A Ticking Fee Commencement Date and ending on the earlier to timeoccur of (x) the date of termination or expiration in full of the 2022-2 Incremental Term Loan Commitments (the “Term Loan A Termination Date”) and (y) the Incremental Closing Date, request in an amount equal to 0.25% per annum on the 2022-2 Incremental Term Loan Commitments, the full amount of which fee shall be payable on the earlier of the Term Loan A Termination Date and the Incremental Closing Date (such date, the “Term Loan A Ticking Fee Payment Date”). For the avoidance of doubt, the Term Loan A Ticking Fee is the “Term Loan A Ticking Fee” referred to in an aggregate amount that certain fee letter, dated October 26, 2022, between Parent and JPMorgan Chase Bank, N.A. and shall not be paid in duplication of such fee.
2.10. To the extent the Incremental Closing Date has not occurred prior to exceed $80,000,000 from one or more the Termination Date (as defined below), the 2022-2 Incremental Term Loan Commitments of the Additional Term Lenders (which may include any existing Lender) willing and the commitment to provide such fund the 2022-2 Incremental Term Loans in their own discretion. Such notice shall set forth terminate on the earliest of (i) the amount Outside Date (as defined in the Acquisition Agreement as in effect on October 26, 2022 (including as may be extended pursuant to Section 7.01(b)(i) of the Incremental Term Loan Commitments being requested (which shall be Acquisition Agreement as in an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereofeffect on October 26, 2022)), (ii) the date on which such valid termination of the Acquisition Agreement in accordance with its terms, and (iii) as to this Agreement, the consummation of the Acquisition without the use this Agreement (including the 2022-2 Incremental Term Loan Loans and the Additional Revolving Commitments are requested to become effective contemplated hereby) (such earliest date, the “Increased Amount Termination Date”), (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Samples: Incremental Assumption Agreement (Regal Rexnord Corp)
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right, by written notice to in consultation and coordination with the Administrative Agent (signed by a Responsible Officer as to all of the Borrower) matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time, request time that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 after the Closing Date and all Indebtedness incurred pursuant to Section 10.04(xxvii)(A) shall not exceed the sum of (x) $325,000,000 plus (y) the sum of all voluntary prepayments of Term Loans, Refinancing Notes and Indebtedness incurred pursuant to Section 10.04(xxvii) that ranks pari passu with the Term Loans (limited, in an aggregate amount not the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to exceed $80,000,000 from one such Refinancing Notes or more Incremental Term Lenders other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) (which may include in each case other than with the proceeds of long-term Indebtedness (other than Indebtedness under the ABL Credit Agreement)) in each case prior to the date of incurrence of any existing Lender) willing to provide such Incremental Term Loans Loan Commitments plus (z) an unlimited amount (a “Ratio-Based Incremental Facility”) so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of such date would not exceed 3.05 to 1.00 (it being understood that the Borrower may utilize amounts under clause (z) prior to amounts under clause (x) and that amounts under both clauses may be used in their own discretion. Such notice shall set forth a single transaction), (ivi) the amount proceeds of all Incremental Term Loans incurred by the Borrower may be used for any purpose not prohibited under this Agreement, (vii) each Incremental Term Loan Commitment Agreement shall specifically designate, with the approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofSection 2.15(c) are satisfied), (iiviii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term B Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Initial Term B Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on which a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit L (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued at the Applicable Margin relating Borrower’s expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately;
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by ; and
(iv) the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making Effective Yield of such Incremental Term Loans shall be ratably increased by would not result in an increase in the aggregate principal amount of Applicable Margins for the InitialTranche to which such new Incremental Term Loans are being added (assuming for this purpose, that such Incremental Term Loans had been incurred as a new Tranche of Incremental Term Loans). To the extent the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Term Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Term Loans of such Tranche and which will end on the last day of such Interest Period). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The At any time and from time to time prior to the Latest Maturity Date, subject to the terms and conditions set forth herein, the Borrower may, may by written prior notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to timeAgent, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from add one or more new credit facilities denominated in Dollars and consisting of one or more additional tranches of term loans (each, an “Incremental Term Facility” and the term loans extended thereunder, the “Incremental Term Loans”), provided that (i) immediately before and after giving effect to each Incremental Amendment and the applicable Incremental Term Facility, no Default or Event of Default has occurred and is continuing or would result therefrom and the representations and warranties in Article V shall be true and correct in all material respects; provided that to the extent the proceeds of any Incremental Term Facility are intended to be applied to finance a Limited Condition Acquisition, if agreed to by the Additional Incremental Lenders (which may include any existing Lender) willing to provide providing such Incremental Term Loans in their own discretion. Such notice shall set forth Facility, (ix) the amount only representations and warranties that will be required to be true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects) as of the applicable closing date for such Incremental Term Loan Commitments being requested (which Facility shall be (A) customary “specified representations” with respect to the applicable acquired company or business and (B) such of the representations and warranties made by or on behalf of the applicable acquired company or business in an aggregate amount the applicable acquisition agreement as are material to the interests of the Additional Incremental Lenders, but only to the extent that Holdings or the applicable Subsidiary has the right to terminate its obligations under such acquisition agreement or not less than $10,000,000 consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement, and in integral multiples (y) the only condition with respect to absence of $1,000,000 in excess thereof)a Default or Event of Default shall be the absence of a Default or Event of Default at the time such acquisition agreement is entered into, (ii) the date on which such amount of Incremental Term Loan Commitments are requested Facilities and Permitted Incremental Equivalent Debt as of such date shall not be greater than the Maximum Incremental Term Facilities Amount permitted to become effective (the “Increased Amount Date”)be incurred on such date, (iii) whether no Incremental Term Loans shall benefit from any Guarantees or Collateral that do not ratably benefit the Term Loans and (iv) in the event that the Yield for any Incremental Term Loans incurred in reliance on clause (b)(i) of the definition of Maximum Incremental Term Facilities Amount that are pari passu in right of payment and with respect to security with the then existing Term Loans is higher than the Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the Yield for such Initial Term Loans is equal to the Yield for such Incremental Term Loan Commitments are Loans minus 50 basis points (the “MFN Adjustment”); provided that the MFN Adjustment shall not be applicable to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the (w) any Incremental Term Loans that are incurred more than 12 months after the Sixth Amendment Effective Date, (“Other x) any Incremental Term Loans”)Loans that have a maturity date more than one year after the then applicable Latest Maturity Date and (y) Incremental Term Loans that are incurred in connection with a Permitted Acquisition or other permitted Investments. Each Incremental Term Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000, provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Facilities set forth above.
(b) The Borrower and each Each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that Facility (i) the Other Term Loans shall rank pari passu or junior in right of payment and in respect of security the Collateral with the Initial Term Loans andor be unsecured (and if secured, subject to the applicable Other Intercreditor Agreement), (ii) for purposes of mandatory prepayments, shall be treated no more favorably than the Initial Term Loans, in the case of an Incremental Term Facility, in each case except those that only apply after the then existing Latest Maturity Date, (iii) except as to pricing, amortization and final maturity dateotherwise required or permitted in this Section 2.15, shall have (x) such terms, if not consistent with the same terms of the Initial Term Loans, as shall be agreed by the Borrower and the Additional Incremental Lenders providing such Incremental Term Facility; provided that to the extent such terms and documentation are not consistent with the then existing Term Loans (except to the extent relating to maturity, yield, use of proceeds or (y) such other terms as availability), they shall be reasonably satisfactory to the Administrative AgentAgent (except for covenants or other provisions applicable only to the periods after the Latest Maturity Date of any then existing Term Loans or Incremental Term Loans) (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loans, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any corresponding existing Term Loans); provided further that (iiA) the no Incremental Term Facility shall have a final maturity date of any Other Term Loans shall be no earlier than the Maturity DateDate with respect to the Initial Term Loans and shall not amortize and (B) no Incremental Term Facility shall have a weighted average life that is shorter than the weighted average life of the then-remaining Initial Term Loans; provided, further, that (iii1) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans immediately preceding clauses (including the Term Loans made on the Closing Date and all other Other Term LoansA) and (ivB) the Weighted Average Life shall not apply to Maturity up to $115,000,000 of any Other Incremental Term Loans shall be no shorter than in the remaining Weighted Average Life aggregate in the sole discretion of Borrower and (2) to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to extent any Incremental Term Loan Commitment exceeds Facility is not pari passu in right of payment and in respect of the Applicable Margin relating to Collateral with the Term Loans or the Credit-Linked DepositsObligations, as it shall (except in the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such any Incremental Term Facility that is incurred as a last-out tranche) be documented pursuant to documentation other than the Loan Commitment minus 0.25%Documents.
(c) Each of notice from the parties hereto hereby agrees that, upon Borrower pursuant to this Section 2.15 shall set forth the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence requested amount and proposed terms of the relevant Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f)Facility. Any additional bank, financial institution, existing Lender or other Person that elects to provide Commitments under an Incremental Term Facility shall be reasonably satisfactory to (i) the Borrower and, (ii) if Administrative Agent would have consent rights with respect to such deemed amendment may be memorialized in writing by new lender under Section 12.04 herein were such new lender to take an assignment of Loans hereunder, the Administrative Agent with (such consent of the Borrower’s consent (Administrative Agent not to be unreasonably withheld) (any such bank, financial institution, existing Lender or other Person being called an “Additional Incremental Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, such Additional Incremental Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and furnished (to the extent it affects the rights or increases the obligations of the Administrative Agent, the Administrative Agent). No Lender shall be obligated to provide any Commitments under an Incremental Term Facility, unless it so agrees (and any Lender that does not respond shall be conclusively presumed not to agree to provide additional Commitments). Commitments in respect of any Incremental Term Facilities shall become Commitments under this Agreement. An Incremental Amendment may, without the consent of any other parties heretoLenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Incremental Lenders comparable to the provisions of Section 12.12 or any changes to Section 2.04 necessary to ensure such Incremental Term Facilities are fungible with the existing Term Loan if such facility is intended to be of the same Class as the relevant existing Term Loan). The proceeds of any Loans under an Incremental Term Facility will be used, directly or indirectly, for working capital and/or general corporate purposes and/or any other purposes not prohibited hereunder (including, without limitation, Restricted Payments and acquisitions).
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment This Section 2.15 shall become effective under this supersede any provisions in Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, 2.08 or 12.12 to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingcontrary.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Samples: First Lien Credit and Guarantee Agreement (Janus International Group, Inc.)
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right to request, at any time after the Initial Borrowing Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to the Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent and the Borrower an Incremental Term Loan Commitment Agreement as provided in clause (signed by b) of this Section 2.14, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Eligible Transferee who will become a Responsible Officer Lender) may so provide an Incremental Term Loan Commitment without the consent of the Borrowerany other Lender, (iii) from time to time, request each Tranche of Incremental Term Loan Commitments, and all Incremental Term Loans to be made pursuant thereto, shall be denominated in an Dollars, (iv) the amount of each Tranche of Incremental Term Loan Commitments (whether constituting a new Tranche of Incremental Term Loans or being added to (and thereafter constituting a part of) a then outstanding Tranche of Term Loans) shall be in a minimum aggregate amount not to exceed $80,000,000 from one or more for all Lenders which provide an Incremental Term Lenders Loan Commitment under such Tranche of Incremental Term Loans (which including Eligible Transferees who will become Lenders) of at least $25,000,000 (or such lower amount as may include be acceptable to the Administrative Agent) and in integral multiples of $5,000,000 in excess thereof (or such other integral multiple as may be acceptable to the Administrative Agent), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.14 and the aggregate principal amount of all Incremental Term Loans to be made pursuant thereto shall not exceed the Maximum Incremental Commitment Amount at such time, (vi) the up-front fees and, if applicable, any existing unutilized commitment fees and/or other fees, payable to each Incremental Term Loan Lender in respect of each Incremental Term Loan Commitment shall be separately agreed to by the Borrower and each such Incremental Term Loan Lender, (vii) willing each Tranche of Incremental Term Loans shall (A) have an Incremental Term Loan Maturity Date of no earlier than the Initial Term Loan Maturity Date, (B) have a Weighted Average Life to provide Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Initial Term Loans and (C) be subject to the Applicable Margins as are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans; provided that, if the Effective Yield for such Tranche of Incremental Term Loans determined as of the initial funding date for such Tranche of Incremental Term Loans exceeds the Effective Yield relating to the Initial Term Loans or such Incremental Term Loans immediately prior to the effectiveness of the respective Incremental Term Loan Commitment Agreement by more than 0.50%, then the Applicable Margins relating to the Initial Term Loans and any Incremental Term Loans thereto incurred shall be adjusted to be equal to the Effective Yield relating to such Tranche of Incremental Term Loans minus 0.50% (it being understood and agreed that any increase in their own discretion. Such notice Effective Yield to the Initial Term Loans or any Tranche of Incremental Term Loans required due to the application of a Base Rate floor or Eurodollar Rate floor on any Incremental Term Loan Facility shall set forth be effected, at the option of the Borrower, through an increase in (ior implementation of, as applicable) any Base Rate floor or Eurodollar Rate floor applicable to the Initial Term Loans or such Tranche of Incremental Term Loans or an increase in the Applicable Margins with respect thereto or a combination thereof), (viii) the amount proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 8.08(c), (ix) each Incremental Term Loan Commitment Agreement shall specifically designate the Tranche or Tranches of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as the Initial Term Loans or any other then existing Tranche of not less than $10,000,000 and in integral multiples Term Loans) unless the requirements of $1,000,000 in excess thereofSection 2.14(c) are satisfied), (iix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the date other applicable Credit Documents and shall be secured by the Security Documents, and guaranteed under the Guaranties, on which a pari passu basis with all other Obligations secured by the Security Documents and guaranteed under the Guaranties, and (xi) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iiiCommitment Agreement as provided in Section 2.01(c) whether and such Incremental Term Loan Commitments are Loans shall thereafter be deemed to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Incremental Term Loans (“Other Term Loans”)under such Tranche for all purposes of this Agreement and the other applicable Credit Documents.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.14, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as Term Loan Commitment Agreement, with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein (and the making of the respective Incremental Term Loans thereunder) to occur on the date set forth in such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior Loan Commitment Agreement, which date in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans event shall be no earlier than the Maturity Datedate on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (iiix) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Incremental Commitment Requirements are satisfied, (including the Term Loans made on the Closing Date and y) all other Other Term Loans) conditions set forth in this Section 2.14 shall have been satisfied, and (ivz) all other conditions precedent that may be set forth in such Incremental Term Loan Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the Weighted Average Life to Maturity effectiveness of any Other each Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin Loan Commitment Agreement, and at such time,
(which, for purposes of this sentence only, i) Schedule I shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued, at the Applicable Margin relating Borrower’s expense, to such Incremental Term Loan Lender in conformity with the requirements of Section 2.05.
(c) Notwithstanding anything to the contrary contained above in this Section 2.14, the Incremental Term Loans Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, C-1, C-2, C-3, etc.); provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, a then outstanding Tranche of Term Loans so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Maturity Date and shall have the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the new Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not Loans to be unreasonably withheld) and furnished made pursuant to the other parties hereto.
(d) Notwithstanding the foregoing, no such Incremental Term Loan Commitment Agreement shall become effective under this Section 2.20 unless have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Tranche of Term Loans to which such new Incremental Term Loans are being added (iwith the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche of Term Loans to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Term Loan Repayments of the respective Tranche of Term Loans proportionately); and
(iii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basisbasis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Lenders making new Incremental Term Loans add such Incremental Term Loans to ABR the then outstanding Borrowings of Eurodollar Loans reasonably required by of the Administrative Agent to respective Tranche of Term Loans, it is acknowledged that the effect the foregoing. If any thereof may result in such new Incremental Term Loan is Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to be allocated outstanding Eurodollar Loans of the respective Tranche and which will end on the last day of such Interest Period). In connection therewith, the Borrower hereby agrees to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Eurodollar Loans during an existing Interest Period for a LIBO Rate Loanon such basis as may be agreed by the Borrower and the respective Lender or Lenders as may be provided in the respective Incremental Term Loan Commitment Agreement. The Incremental Term Loan Agreement may, then with the interest rate thereon for consent of the Borrower and the Administrative Agent, but without the consent of any other Credit Party or the Lenders, effect such Interest Period amendments to this Agreement and the other economic consequences thereof shall Credit Documents as may be as set forth necessary or appropriate, in the applicable Incremental Assumption Agreement. In additionreasonable opinion of the Administrative Agent and the Borrower, to effect the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under provisions of this Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans2.14.
Appears in 1 contract
Samples: Credit Agreement (Town Sports International Holdings Inc)
Incremental Term Loan Commitments. (a) The Lead Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) may at any time and from time to time, time request that one or more Lenders (or one or more Eligible Transferees who will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrowers and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Amendment, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by Lead Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Amendment shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate principal amount of any Incremental Term Loans on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Term Loans incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vii) Lead Borrower shall specifically designate, in consultation with the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in an aggregate amount the applicable Incremental Term Loan Amendment, (viii) if to be incurred as a new Tranche of not Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than $10,000,000 the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity (in each case of the foregoing clauses (a) and in integral multiples (b), excluding for this purpose, interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the requirements of $1,000,000 in excess thereofthis clause (I)), (iiII) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Amendment; provided, however, that if the Effective Yield for any such Incremental Term Loans incurred prior the date that is six (6) months after the First Restatement Effective Date, exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.75% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrowers shall be Obligations of the Borrowers under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on which a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Amendment as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrowers, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such Term Loan Amendment (which shall not require the consent of any other documentation as Lender), with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, Loan Amendment shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Amendment, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued at the Applicable Margin relating Borrowers’ expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Amendment shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Amendment shall have the same Borrowers, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. The Borrower agrees To the extent the provisions of the preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Lenders making new Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Term Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Term Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be ratably increased permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the aggregate principal amount Administrative Agent of the LIBO Rate in such Incremental Term Loanscircumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (VERRA MOBILITY Corp)
Incremental Term Loan Commitments. (a) The So long as no Default or Event of Default then exists or would result therefrom, the Borrower mayshall have the right to request on one or more occasions on or after the Syndication Date and prior to the RF Maturity Date that one or more Lenders and/or one or more other Eligible Transferees provide Incremental Term Loan Commitments and, subject to the terms and conditions contained in this Agreement and the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans, pursuant thereto, it being understood and agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent an Incremental Term Loan Commitment Agreement as provided in clause (signed by b) of this Section 1.14, such Lender shall not be obligated to fund any Incremental Term Loans;
(ii) any Lender or other Eligible Transferee may so provide an Incremental Term Loan Commitment without the consent of any other Lender;
(iii) each provision of Incremental Term Loan Commitments pursuant to this Section 1.14 on a Responsible Officer given date pursuant to a particular Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount (for all Lenders and other Eligible Transferees who will become Lenders pursuant thereto) of $10,000,000;
(iv) the aggregate amount of all Incremental Term Loan Commitments permitted to be provided pursuant to this Section 1.14 shall not exceed $75,000,000;
(v) each Lender agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the Borrowerrelevant conditions set forth in this Agreement, make Incremental Term Loans as provided in Section 1.01(e) from time and such Loans shall thereafter be deemed to time, request be Term Loans for all purposes of this Agreement and the other Credit Documents;
(vi) the fees and interest to be paid to any Eligible Transferees other than then Existing Lenders that have been requested by the Borrower to provide Incremental Term Loan Commitments shall be no greater than that to be paid to (or which was offered to) to the then Existing Lenders providing (or which were requested to provide) any such requested Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from one or more Incremental Term Lenders );
(which may include any existing Lendervii) willing to provide such all Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of the to be incurred pursuant to Incremental Term Loan Commitments being requested provided in response to a particular request for same made by the Borrower in accordance with clause (b) of this Section 1.14 shall be incurred pursuant to a single Incremental Term Loan Commitment Agreement, which may be executed in counterparts;
(viii) the Borrower shall be in an aggregate amount of not less than $10,000,000 compliance with the Financial Covenants (calculated on a Post-Test Period Pro Forma Basis and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iii) whether such and any other then existing Incremental Term Loan Commitments are Commitments) have been incurred and the proceeds thereof applied in a manner as certified to by an Authorized Officer of the Borrower to the Administrative Agent) at such time; and
(ix) all actions taken by the Borrower pursuant to this Section 1.14 shall be Term Loan Commitments or commitments to make term loans taken in coordination with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)Administrative Agent.
(b) The Borrower At the time of any provision of Incremental Term Loan Commitments pursuant to this Section 1.14, (i) the Borrower, and each Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each an “Incremental Term Loan Lender”) shall execute (which execution may be in counterparts) and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement (it being understood that a single Incremental Term Loan Commitment Agreement shall be executed and delivered by all Incremental Term Loan Lenders providing Incremental Term Loan Commitments in response to a particular request for same made by the Borrower) substantially in the form of Exhibit C (appropriately completed and with such modifications as may be reasonably acceptable to the Administrative Agent and the Borrower), with the effectiveness of the Incremental Term Loan Commitment(s) provided therein to occur on the date set forth in such Incremental Term Loan Commitment Agreement and the payment of any fees required in connection therewith; (ii) Holdings and its Subsidiaries shall have delivered such other documentation amendments, modifications and/or supplements to the Security Documents (if any) as are necessary or, in the reasonable opinion of the Administrative Agent, desirable to ensure that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitments are secured by, and entitled to the benefits of, the Security Documents; (iii) the Administrative Agent shall receive an acknowledgment from the Credit Parties that the Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments are entitled to the benefits of the Guaranties and the Security Documents; (iv) the Administrative Agent shall have received evidence reasonably specify satisfactory to evidence it that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify Commitments are permitted by, and constitute “Senior Indebtedness” and “Designated Senior Indebtedness” under, the terms of the applicable Incremental Term LoansSenior Subordinated Note Indenture (or any replacement indenture governing any Refinancing Indebtedness outstanding under Section 8.04(e)); provided that and (iv) the Other Term Loans Borrower shall rank pari passu deliver to the Administrative Agent an opinion or junior opinions, in right of payment form and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be substance reasonably satisfactory to the Administrative Agent, (ii) from counsel to the final maturity date Borrower reasonably satisfactory to the Administrative Agent and dated such date, covering such matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds Agreement, and shall deliver to each Lender a copy of same, and (i) at such time Schedule I shall be deemed modified to reflect the Applicable Margin relating Incremental Term Loan Commitments of the respective Incremental Term Loan Lenders and (ii) to the extent requested by such Incremental Term Loan Lenders, Term Notes will be issued, at the Borrower’s expense, to such Incremental Term Loan Lenders, to be consistent with the requirements of Section 1.05 (with appropriate modifications, to the extent needed) to reflect the Incremental Term Loans made by such Incremental Term Loan Lenders or the Credit-Linked DepositsLender, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the The Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not Loans made pursuant to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no each Incremental Term Loan Commitment Agreement shall become effective under this Section 2.20 unless constitute part of, and be added to, the Facility comprising the Term Loans and, consequently:
(i) such Incremental Term Loans shall have the same Maturity Date and shall bear interest at the same rates (i.e., have the same Applicable Margins) applicable to Term Loans;
(ii) the Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Term Loans (with the amount of each Scheduled Repayment applicable to such Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Term Loans, thereby increasing the amount of each then remaining Scheduled Repayment proportionately; and
(iii) on the date of the making of such effectivenessIncremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 1.09, same shall be satisfied added to (and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (iiform part of) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees basis (based on the relative sizes of the various outstanding Borrowings), so that Section 2.16 shall apply to any conversion each Lender will participate proportionately in each then outstanding Borrowing of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, and so that the scheduled amortization payments under Section 2.07(aExisting Lenders having then outstanding Term Loans continue to have the same participation (by amount) required to be made after in each Borrowing of Term Loans as they had before the making of such Incremental Term Loans shall be ratably increased by Loans. To the aggregate principal amount extent the provisions of preceding clause (iii) require that Lenders making such Incremental Term Loans add same to then outstanding Borrowings of Eurodollar Loans, it is acknowledged that the effect thereof may result in such Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Eurodollar Loans and which will end on the last day of such Interest Period). In connection therewith, the Borrower may agree, in the respective Incremental Term Loan Commitment Agreement, to compensate the Incremental Term Loan Lenders making such Incremental Term Loans for funding Eurodollar Loans during an existing Interest Period on such basis as may be agreed to by the Borrower and the respective Incremental Term Loan Lender or Incremental Term Loan Lenders.
Appears in 1 contract
Samples: Credit Agreement (RBS Global Inc)
Incremental Term Loan Commitments. (a) The Borrower mayNew Holdings shall have the right, by written notice to in consultation and coordination with the Administrative Agent (signed by a Responsible Officer as to all of the Borrower) matters set forth below in this subsection 2.4, but without requiring the consent of any of the Lenders, to request at any time and from time to timetime that one or more Lenders (and/or one or more other Persons which are Eligible Assignees and which will become Lenders (it being understood that New Holdings shall have no obligation to seek commitments in respect of Incremental Term Loans from existing Lenders)) provide Incremental Term Loan Commitments to the Borrowers and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by New Holdings, (ii) any Lender (including any Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Transferees who will become Lenders) of at least $10,000,000 (or, if less, the remaining available amount), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this subsection 2.4 after the Effective Date and all Indebtedness incurred pursuant to subsection 8.2(h) shall not exceed at the time of incurrence thereof the sum of (x) $150,000,000, plus (y) the sum of all voluntary prepayments of Term Loans and Indebtedness incurred pursuant to subsection 8.2(h) that ranks pari passu with the Initial Term Loans (limited to the cash payment made by any Loan Party or Restricted Subsidiary therefor) (in each case other than any prepayment (1) of Incremental Term Loans to the extent such Incremental Term Loans were obtained pursuant to clause (z) below or of Indebtedness incurred pursuant to subsection 8.2(h) or (2) to the extent funded with the proceeds of long-term Indebtedness (other than Indebtedness under an ABL Facility)) in each case prior to the applicable date of incurrence of any such Incremental Term Loan Commitments, plus (z) an unlimited amount (a “Ratio-Based Incremental Facility”) so long as, in an aggregate amount not the case of this clause (z) only, (i) in the case of Indebtedness secured by Liens on the Collateral that rank pari passu with the Liens securing the Initial Term Loans, on a pro forma basis, the Consolidated First Lien Net Leverage Ratio is less than or equal to exceed $80,000,000 from one 3.75 to 1.00 as of the last day of the most recently ended Test Period and (ii) in the case of Indebtedness secured by Liens on the Collateral that ranks junior with to the Liens securing the Initial Term Loans, on a pro forma basis, the Consolidated Total Net Leverage Ratio is less than or more Incremental Term Lenders equal to 5.00 to 1.00 as of the last day of the most recently ended Test Period (which it being understood that the Borrowers may include any existing Lenderutilize amounts under clause (z) willing prior to provide such amounts under clause (x) or clause (y) and that amounts under both clauses may be used in a single transaction), (v) the proceeds of all Incremental Term Loans in their own discretion. Such notice incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vi) each Incremental Term Loan Commitment Agreement shall set forth (i) specifically designate, with the amount approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofsubsection 2.4(c) are satisfied), (iivii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other then outstanding Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of the preceding clause (v)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by subsection 4.6; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a weighted average life to maturity of no less than the weighted average life to maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest weighted average life to maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin”; provided, further, (A) if any Incremental Term Loans, which are secured by a Lien on which the Collateral ranking pari passu with the Lien on the Collateral securing the Indebtedness hereunder, include a Eurodollar Rate or ABR floor that is greater than the Eurodollar Rate or ABR floor applicable to the existing Initial Term Loans, such differential between interest rate floors shall be included in the calculation of Effective Yield but only to the extent an increase in the Eurodollar Rate or ABR floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder and (B) to the extent any increase in the Effective Yield on the existing Initial Term Loans is required pursuant to the immediately preceding proviso, such increase shall be effected first through an increase in the Eurodollar Rate or ABR floor applicable to such existing Initial Term Loans in an amount equal to the amount of the differential indicated in the foregoing clause (A) with any remaining required increase effected pursuant to an increase the Applicable Margin to the extent required by the definition thereof, and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II) and clause (ix) below) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrowers shall be Obligations of the Borrowers under this Agreement and the other applicable Loan Documents and shall be secured by the Security Documents, and guaranteed under each relevant guarantee, on a pari passu or junior basis with all other Term Loans secured by the Security Documents and guaranteed under each such Collateral and Guarantee Agreement and no Incremental Term Loans shall have any obligors, guarantors or collateral other than those applicable to the other Term Loans, (x) each Lender (including any Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in subsection 2. 1(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Loan Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this subsection 2.4, the Borrowers, the Administrative Agent and each such Lender or other Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit N (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this subsection 2.4 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 1.1A shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the addition of the Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Notes will be issued at the Applicable Margin relating Borrowers’ expense to such Incremental Term Loan Lender, to be in conformity with the requirements of subsection 4.2(e) (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this subsection 2.4, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrowers, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same amortization payment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each amortization payment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining amortization payment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately;
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated subsection 4.7, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to subsection 2.1(b)) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by ; and
(iv) the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making Effective Yield of such Incremental Term Loans shall be ratably increased by would not result in an increase in the aggregate principal amount of Applicable Margins for the Initial Term Loans (assuming for this purpose, that such Incremental Term Loans had been incurred as a new Tranche of Incremental Term Loans). To the extent the provisions of the preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of Eurodollar Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Eurodollar Loans of such Tranche and which will end on the last day of such Interest Period). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Samples: Credit Agreement (Cumulus Media Inc)
Incremental Term Loan Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) request that an additional term loan facility be established under this Agreement in accordance with the final maturity date provisions of any Other Term Loans this Section. The maximum amount of such facility shall be no earlier than the Maturity Date$75,000,000, (iii) the terms applicable and it may be increased to each series of Other Term Loans shall not require any prepayment thereof such amount in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loansone or more stages. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating Prior to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to Permanent Securities Issuance Date such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment facility may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not an amount up to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required $25,000,000 if approved by the Administrative Agent, consistent with those delivered on and after the Closing Permanent Securities Issuance Date under Section 4.01 and such additional customary documents and filings (including amendments facility may be in an amount up to the Mortgages and other Security Documents and title endorsement bringdowns) as $50,000,000 if approved by the Administrative Agent may reasonably require and up to assure that the Incremental Term Loans are secured $75,000,000 if approved by the Collateral ratably with (or, to the extent agreed Administrative Agent and by the applicable Incremental Term Required Lenders in accordance with Section 10.1, provided (i) only those lenders which commit to do so at the time such facility is requested to be established (including Persons that are not Lenders prior to making such commitment) shall participate in such facility (the "Participating Lenders") and all other terms and conditions applicable Incremental Assumption to such facility shall be consistent with the terms and conditions of this Agreement, junior to(ii) no loan made thereunder shall have a final maturity earlier than the existing final maturity of the Tranche B Term Loans, (iii) after giving effect the proceeds of the loans under such facility may be used only to such Incremental Term Loan Commitments finance acquisitions permitted hereunder, repay related Indebtedness and the Loans to pay fees and expenses related thereto, (iv) no loans may be made thereunder and under such facility after the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as third anniversary of the Closing Date and (ivv) both before the interest rate, commitment fee rate and after giving effect to amortization schedule for such Incremental Term Loan Commitments facility shall be determined by the Borrowers and the Loans Participating Lenders. Upon receipt of such notice the Administrative Agent shall seek to be made thereunder and obtain the application agreement of the proceeds therefrom as if made and applied on such date, no Default or Event Required Lenders to approve a request to establish an additional term loan facility in an aggregate principal amount greater than $50,000,000 but not in excess of Default shall have occurred and be continuing$75,000,000.
(eb) Each of the parties hereto hereby agrees that If (and only if) the Administrative Agent may take any or the Required Lenders, as required, shall have agreed to establish such additional term loan facility, such term loan facility shall be established pursuant to documentation consistent herewith and all action as may be otherwise in form and substance reasonably necessary satisfactory to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect and shall become effective on a date mutually agreed upon with the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansBorrowers.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The In the event that the Lenders shall have made the initial Term Loans pursuant to Section 2.01(a) on or prior to the last day of the Availability Period for the Term Facility, the Borrower maymay at its sole expense and effort and after consulting with the Administrative Agent, by written notice at any time after the last day of the Availability Period for the Term Facility, request: (i) one or more Lenders to establish (in the sole and absolute discretion of each such Lender) additional Term Commitments and/or (ii) one or more other lending institutions acceptable to the Administrative Agent (signed by each, a Responsible Officer of the Borrower“New Term Lender”) from time to time, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective “Term Lenders” and establish Term Commitments hereunder (each such existing Lender and each New Term Lender being referred to as a “Proposed Term Lender”). To request an extension of additional or new Term Commitments pursuant to this Section 2.17 (the “Increased Amount DateIncremental Term Commitment”), (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver submit to the Administrative Agent an Incremental Assumption Agreement a written request signed by the Borrower and such other documentation as in form approved by the Administrative Agent shall reasonably specify to evidence (the “Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement Request”), which shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Depositsspecify, as the case may be, immediately prior to : (A) each such existing Lender and the effectiveness amount of the applicable proposed Incremental Assumption Agreement by more than 0.25%Term Commitment, or (B) the proposed Term Commitment for each New Term Lender. Promptly following receipt of the Incremental Term Loan Request, the Applicable Margin relating to Administrative Agent shall advise each Proposed Term Lender of the details thereof.
(b) If one or more Proposed Term Loans Lender(s) shall be adjusted to be equal to the Applicable Margin relating have unconditionally agreed to such Incremental Term Loan Commitment minus 0.25%.
(c) Each Request in a writing delivered to the Borrower and the Administrative Agent at any time prior to the 30th day following the date of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended delivery to the extent (but only to the extentsuch Proposed Term Lender(s) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby Request (each such Proposed Term Lender being hereinafter referred to as provided for in Section 9.02(fan “Incremental Term Lender”). Any , then: (x) each such deemed amendment may Incremental Term Lender which shall then be memorialized in writing an existing Lender shall have its Term Loan Commitment increased by the Administrative Agent with amount set forth in the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Request and (y) each such Incremental Term Lender which shall then be a New Term Lender shall be and become a “Term Lender” hereunder having a Term Loan Commitment shall become effective under this Section 2.20 unless (i) on equal to the date of such effectiveness, the conditions amount set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such dateRequest, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and provided, however, that (iv1) both immediately before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such datethereto, no Default or Event of Default shall or would exist, (2) each such Incremental Term Lender shall have occurred executed and be continuing.
(e) Each of the parties hereto hereby agrees that delivered to the Administrative Agent may take any and all action a supplement to this Agreement providing for its increased Term Commitment or its Term Commitment, as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) applicable, in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required approved by the Administrative Agent Agent, (3) immediately after giving effect thereto, the aggregate amount of the Incremental Revolving Commitments established pursuant to effect Section 2.16 and the foregoing. If any Incremental Term Loan Commitments established pursuant to this Section 2.17 shall not exceed $1,000,000,000, (4) the increase of the Term Facility specified in the Incremental Term Loan Request shall be not less than $25,000,000 or an integral multiple thereof, (5) the minimum Term Commitment established by each Incremental Term Lender which is a New Term Lender shall be in an amount of not less than $15,000,000 or an integral multiple of $1,000,000 in excess thereof, (6) the minimum increase to be allocated to the Term Commitment established by each Incremental Term Lender which is an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof Lender shall be as set forth in an amount of not less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (7) on the applicable effective date of each Incremental Assumption Agreement. In additionTerm Commitment, the Borrower shall borrow an amount equal to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal full amount of such Incremental Term LoansCommitment.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right, after the occurrence of the Restatement Effective Date, to request from time to time (by written notice to the Administrative Agent (signed by Agent, who shall send a Responsible Officer copy of the Borrowersuch notice to each Lender) from time to time, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from that one or more Incremental Term Lenders (and/or one or more other Persons, reasonably acceptable to the Administrative Agent, which may include any existing Lenderwill become Lenders as provided below) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested and, subject to the terms and conditions contained in this Agreement and the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto, so long as (which shall be in an aggregate amount w) no Default or Event of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof)Default then exists or would result therefrom, (iix) all Incremental Term Loans are incurred on the date on of the effectiveness of the respective Incremental Term Loan Commitment Agreement pursuant to which such the related Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”)provided, (iiiy) whether the Borrower shall have demonstrated to the Administrative Agent’s reasonable satisfaction that the full amount of the respective Incremental Term Loans may be incurred without violating the terms of any Senior Secured Notes, Second Lien Notes, Senior Notes, Other Unsecured Debt, any other material Indebtedness of the Borrower or any of its Subsidiaries or the documentation governing any such Indebtedness and (z) the Borrower shall be in compliance, on a Pro Forma Basis, with (i) the Financial Covenant and (ii) a Total Secured Leverage Ratio of less than 3.25:1.00, in each case, for the Calculation Period most recently ended prior to the date of the respective incurrence of Incremental Term Loans (determined as if the full amount of such Incremental Term Loan Commitments are Loans had been incurred on the first day of such Calculation Period); it being understood and agreed, however, that (i) no Lender shall be obligated to be provide an Incremental Term Loan Commitments or commitments Commitment as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each provide an Incremental Term Lender shall execute Loan Commitment and deliver executed and delivered to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment Agreement as provided in clause (b) of this Section 2.14, such Incremental Term Lender. Each Incremental Assumption Agreement Lender shall specify the terms of the applicable not be obligated to fund any Incremental Term Loans; provided that , (iii) the Other Term Loans shall rank pari passu any Lender (or junior in right of payment and of security with the Term Loans andany other Person, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory acceptable to the Administrative Agent, (iiwhich will qualify as an Eligible Transferee) may so provide an Incremental Term Loan Commitment without the final maturity date consent of any Other Term Loans shall be no earlier than the Maturity Dateother Lender, (iii) the terms applicable to amount of each series Tranche of Other Incremental Term Loan Commitments (whether constituting a new Tranche of Incremental Term Loans shall not require any prepayment thereof in excess or being added to (and thereafter constituting a part of) a then outstanding Tranche of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) shall be in a minimum aggregate amount (for all Lenders and Eligible Transferees which will become Lenders) of at least $25,000,000, (iv) the aggregate amount of all Incremental Term Loan Commitments that may be incurred at any time pursuant to this Section 2.14 shall not exceed the Available Incremental Commitment Amount at such time, (v) the up-front fees and, if applicable, any unutilized commitment fees and/or other fees, payable to each Incremental Term Loan Lender in respect of each Incremental Term Loan Commitment shall be separately agreed to by the Borrower and each such Incremental Term Loan Lender, (vi) each Tranche of Incremental Term Loans shall (I) have an Incremental Term Loan Maturity Date of no earlier than the Initial Term Loan Maturity Date, (II) not have a Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans and (III) be subject to the Applicable Margins, Base Rate floor and Eurodollar Rate floor, if any, that are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans. If , provided that, on or prior to the second anniversary of the Restatement Effective Date, if the Applicable Margin Margins for such Tranche of Incremental Term Loans (which, for such purposes of this sentence only, shall be deemed to include all upfront up-front or similar fees or original issue discount (amortized over the shorter of (x) the life of such Tranche of Incremental Term Loans and (y) four years) payable to all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans and any Eurodollar Rate floor or Base Rate floor applicable to such Incremental Term Loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans) determined as of the initial funding date for such Tranche of Incremental Term Loans exceeds the Applicable Margin (which, for such purposes only, shall be deemed to include all up-front or similar fees or original issue discount originally payable to all Lenders providing such the Initial Term Loans and any Eurodollar Rate floor or Base Rate floor applicable to the Initial Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Initial Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable respective Incremental Assumption Term Loan Commitment Agreement by more than 0.250.50%, then the Applicable Margin Margins relating to the Initial Term Loans shall be adjusted to be equal to the Applicable Margin Margins (determined as provided above) relating to such Tranche of Incremental Term Loans minus 0.50%, (vii) each Incremental Term Loan Commitment Agreement shall specifically designate the Tranche or Tranches of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as the Initial Term Loans or any other then existing Tranche of Term Loans) unless the requirements of Section 2.14(c) are satisfied), (viii) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the Security Documents, and guaranteed under the Subsidiaries Guaranty, on a pari passu basis with all other Obligations secured by the Security Documents and guaranteed under the Subsidiaries Guaranty, (ix) the Incremental Term Loan Lenders providing the respective Incremental Term Loans (unless being added to the Initial Term Loans) may agree in the respective Incremental Term Loan Commitment Agreement to participate on a less than pro rata basis in any voluntary or mandatory prepayments or repayments hereunder, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitment Agreement as provided in Section 2.01(b) and such Incremental Term Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents, (xi) the aggregate amount of requests by the Borrower to obtain Incremental Term Loan Commitments pursuant to this Section 2.14, when combined with the aggregate amount of all requests to obtain Incremental RL Commitments pursuant to Section 2.15, shall not exceed five (unless a greater number of requests is permitted by the Administrative Agent), and (xii) all actions taken by the Borrower pursuant to this Section 2.14 shall be done in coordination with the Administrative Agent.
(b) In connection with any provision of Incremental Term Loan Commitments pursuant to this Section 2.14, (i) the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee reasonably acceptable to the Administrative Agent (each, an “Incremental Term Loan Lender”) which agrees to provide an Incremental Term Loan Commitment shall execute and deliver to the Administrative Agent an Incremental Term Loan Commitment Agreement substantially in the form of Exhibit K-1 or such other form that is reasonably acceptable to the Administrative Agent (appropriately completed) (each, an “Incremental Term Loan Commitment Agreement”), with the effectiveness of such Incremental Term Loan Lender’s Incremental Term Loan Commitment to occur upon delivery of such Incremental Term Loan Commitment Agreement to the Administrative Agent, the payment of any fees required in connection therewith (including, without limitation, any agreed upon up-front or arrangement fees) and the satisfaction of the other terms and conditions described in this Section 2.14 and in the respective Incremental Term Loan Commitment Agreement, and (ii) the Borrower shall deliver, in each case to the extent requested by the Administrative Agent, to the Administrative Agent (x) an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably satisfactory to the Administrative Agent and dated the applicable Incremental Term Loan Borrowing Date, covering such matters relating to the provision of the Incremental Term Loan Commitments as may be reasonably requested by the Administrative Agent, (y) a solvency certificate from the Chief Financial Officer of the Borrower, dated the applicable Incremental Term Loan Borrowing Date, substantially in the form of Exhibit J (with appropriate modifications that are reasonably acceptable to the Administrative Agent to reflect the Incremental Term Loans and any related transactions to occur on such date) and (z) such other officers’ certificates, board of director resolutions and evidence of good standing as the Administrative Agent shall reasonably request (including such officer’s certificates, in reasonable detail (and with supporting calculations as necessary), demonstrating compliance with clauses (y) and (z) of Section 2.14(a)). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement, and at such time (A) Schedule I shall be deemed modified to reflect the Incremental Term Loan Commitments of such Incremental Term Loan Lenders and (B) to the extent requested by any Incremental Term Loan Lender, an appropriate Incremental Term Note will be issued at the Borrower’s expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.14, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or Incremental Term Loan Lenders, as the case may be, pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, C-1, C-2, C-3, etc.), provided that, with the consent of the Administrative Agent, the parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, a then outstanding Tranche of Term Loans so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Maturity Date and shall have the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the new Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not Loans to be unreasonably withheld) and furnished made pursuant to the other parties hereto.
(d) Notwithstanding the foregoing, no such Incremental Term Loan Commitment Agreement shall become effective under this Section 2.20 unless have the same Scheduled Initial Term Loan Repayment Dates as then remain with respect to the Tranche of Term Loans to which such new Incremental Term Loans are being added, with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (ion a proportionate basis) as was theretofore applicable to the Tranche of Term Loans to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche of Term Loans proportionately; and
(iii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basisbasis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Lenders making new Incremental Term Loans add such Incremental Term Loans to ABR the then outstanding Borrowings of Eurodollar Loans reasonably required by of the Administrative Agent to respective Tranche of Term Loans, it is acknowledged that the effect the foregoing. If any thereof may result in such new Incremental Term Loan is Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to be allocated outstanding Eurodollar Loans of the respective Tranche and which will end on the last day of such Interest Period). In connection therewith, the Borrower hereby agrees to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Eurodollar Loans during an existing Interest Period on such basis as may be reasonably determined by the respective Lenders to compensate them for a LIBO Rate Loan, then funding the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any various Incremental Term Loans are not Other Term Loansduring an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). All determinations by any Lender pursuant to the scheduled amortization payments under Section 2.07(a) required to immediately preceding sentence shall, absent manifest error, be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loansfinal and conclusive and binding on all parties hereto.
Appears in 1 contract
Samples: Credit Agreement (Pyramid Communication Services, Inc.)
Incremental Term Loan Commitments. (a) The Lead Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) may at any time and from time to time, time request that one or more Lenders (or one or more Eligible Transferees who will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrowers and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Amendment, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by Lead Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Amendment shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate principal amount of any Incremental Term Loans on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Term Loans incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vii) Lead Borrower shall specifically designate, in consultation with the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in an aggregate amount the applicable Incremental Term Loan Amendment, (viii) if to be incurred as a new Tranche of not Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than $10,000,000 the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity (in each case of the foregoing clauses (a) and in integral multiples (b), excluding for this purpose, interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the requirements of $1,000,000 in excess thereofthis clause (I)), (iiII) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Amendment; provided, however, that if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrowers shall be Obligations of the Borrowers under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on which a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Amendment as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrowers, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such Term Loan Amendment (which shall not require the consent of any other documentation as Lender), with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, Loan Amendment shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Amendment, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued at the Applicable Margin relating Borrowers’ expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Amendment shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Amendment shall have the same Borrowers, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. The Borrower agrees To the extent the provisions of the preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Lenders making new Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Term Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Term Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be ratably increased permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the aggregate principal amount Administrative Agent of the LIBO Rate in such Incremental Term Loanscircumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Interior Logic Group Holdings, LLC)
Incremental Term Loan Commitments. (a) The At any time and from time to time prior to the Latest Maturity Date, subject to the terms and conditions set forth herein, the Borrower may, may by written prior notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to timeAgent, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from add one or more new credit facilities denominated in Dollars and consisting of one or more additional tranches of term loans (each, an “Incremental Term Facility” and the term loans extended thereunder, the “Incremental Term Loans”), provided that (i) immediately before and after giving effect to each Incremental Amendment and the applicable Incremental Term Facility, no Default or Event of Default has occurred and is continuing or would result therefrom and the representations and warranties in Article V shall be true and correct in all material respects; provided that to the extent the proceeds of any Incremental Term Facility are intended to be applied to finance a Limited Condition Acquisition, if agreed to by the Additional Incremental Lenders (which may include any existing Lender) willing to provide providing such Incremental Term Loans in their own discretion. Such notice shall set forth Facility, (ix) the amount only representations and warranties that will be required to be true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects) as of the applicable closing date for such Incremental Term Loan Commitments being requested (which Facility shall be (A) customary “specified representations” with respect to the applicable acquired company or business and (B) such of the representations and warranties made by or on behalf of the applicable acquired company or business in an aggregate amount the applicable acquisition agreement as are material to the interests of the Additional Incremental Lenders, but only to the extent that Holdings or the applicable Subsidiary has the right to terminate its obligations under such acquisition agreement or not less than $10,000,000 consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement, and in integral multiples (y) the only condition with respect to absence of $1,000,000 in excess thereof)a Default or Event of Default shall be the absence of a Default or Event of Default at the time such acquisition agreement is entered into, (ii) the date on which such amount of Incremental Term Loan Commitments are requested Facilities and Permitted Incremental Equivalent Debt as of such date shall not be greater than the Maximum Incremental Term Facilities Amount permitted to become effective (the “Increased Amount Date”)be incurred on such date, (iii) whether no Incremental Term Loans shall benefit from any Guarantees or Collateral that do not ratably benefit the Term Loans and (iv) in the event that the Yield for any Incremental Term Loans incurred in reliance on clause (b)(i) of the definition of Maximum Incremental Term Facilities Amount that are pari passu in right of payment and with respect to security with the then existing Term Loans is higher than the Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the Yield for such Initial Term Loans is equal to the Yield for such Incremental Term Loan Commitments are Loans minus 50 basis points (the “MFN Adjustment”); provided that the MFN Adjustment shall not be applicable to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the (w) any Incremental Term Loans that are incurred more than 12 months after the Closing Date, (“Other x) any Incremental Term Loans”)Loans that have a maturity date more than one year after the then applicable Latest Maturity Date and (y) Incremental Term Loans that are incurred in connection with a Permitted Acquisition or other permitted Investments. Each Incremental Term Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000, provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Facilities set forth above.
(b) The Borrower and each Each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that Facility (i) shall rank (A) pari passu in right of payment and in respect of the Other Collateral with the Obligations in respect of the Term Loans shall rank made available to the Borrower or (B) pari passu or junior in right of payment and in respect of security the Collateral with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Second Lien Loans or unsecured (yand if secured, subject to the applicable Other #4848-1207-1386 79
(c) such Each notice from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Incremental Term Facility. Any additional bank, financial institution, existing Lender or other terms as Person that elects to provide Commitments under an Incremental Term Facility shall be reasonably satisfactory to (i) the Administrative AgentBorrower and, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating if Administrative Agent would have consent rights with respect to such Incremental Term Loan Commitment minus 0.25%.
(c) Each new lender under Section 12.04 herein were such new lender to take an assignment of the parties hereto hereby agrees thatLoans hereunder, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with (such consent of the Borrower’s consent (Administrative Agent not to be unreasonably withheld) (any such bank, financial institution, existing Lender or other Person being called an “Additional Incremental Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, such Additional Incremental Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and furnished (to the extent it affects the rights or increases the obligations of the Administrative Agent, the Administrative Agent). No Lender shall be obligated to provide any Commitments under an Incremental Term Facility, unless it so agrees (and any Lender that does not respond shall be conclusively presumed not to agree to provide additional Commitments). Commitments in respect of any Incremental Term Facilities shall become Commitments under this Agreement. An Incremental Amendment may, without the consent of any other parties hereto.Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Incremental Lenders comparable to the provisions of Section 12.12 or any changes to Section 2.04 necessary to ensure such Incremental Term Facilities are fungible with the existing Term Loan if such facility is intended to be of the same Class as the relevant existing Term Loan). The proceeds of any Loans under an Incremental Term Facility will be used, directly or indirectly, for working #4848-1207-1386 80
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment This Section 2.15 shall become effective under this supersede any provisions in Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, 2.08 or 12.12 to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingcontrary.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any permit the Borrower, with respect to the initial BorrowingBorrowings of 2019-B Term Loans and all action 2021-B Term Loans only, to enter into an Interest Period that is shorter than the Interest Period applicable to the Borrowing of Initial Term Loans outstanding immediately prior to the making of the 2019-B Term Loans or the 2021-B Term Loans, as may be reasonably necessary applicable, in order to ensure that (i) the Interest Period applicable to the initial Borrowing of 2019-B Term Loans or 2021-B Term Loans, as applicable, ends on the same day as the Interest Period applicable to the borrowing of all Incremental other Initial Term Loans (and not withstanding any other than Other Term Loans) in the form provision of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees this Agreement that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to would prohibit such an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansPeriod).
Appears in 1 contract
Samples: First Lien Credit and Guarantee Agreement (Janus International Group, Inc.)
Incremental Term Loan Commitments. (j) So long as no Default or Event of Default is then in existence or would exist after giving effect thereto, the Borrower shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.16, but without requiring the consent of the Administrative Agent or any of the Lenders, to request at any time and from time to time that one or more Lenders (and/or one or more other Persons that are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (a) The Borrower mayno Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Borrower, by written notice and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 2.16, such Lender shall not be obligated to fund any Incremental Term Loans, (b) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (c) each Tranche of Incremental Term Loan Commitments shall be denominated in an U.S. Dollars, (d) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders that provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $20,000,000, (e) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 after the Closing Date, shall not exceed the amount that could be incurred at such time without causing the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the Test Period then most recently ended for which financial statements have been delivered (or, if no Test Period has ended as of such time, for the period of four consecutive fiscal quarters of the Borrower then most recently ended for which financial statements have been delivered), to exceed 4.25:1.00 plus, from and after the date on which the Leverage Step-Down Trigger occurs (which shall only be required to occur once), $80,000,000 from 100,000,000, (f) the proceeds of all Incremental Term Loans incurred by the Borrower shall be used for working capital and other general corporate purposes (including, without limitation, to finance one or more Permitted Acquisitions and to pay fees and expenses in connection therewith), (g) each Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice Loan Commitment Agreement shall set forth (i) specifically designate, with the amount approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in a new Tranche i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.16(c) are satisfied), (h) Incremental Term Loans shall be on terms and pursuant to documentation to be determined, provided that except to the extent such terms and documentation are not consistent with the Initial Term Loans (except with respect to distinctions otherwise addressed by this paragraph), all documentation with respect to such Incremental Term Loans shall be reasonably satisfactory to the Administrative Agent; provided, however, that (i) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (i) an aggregate amount Initial Incremental Term Loan Maturity Date of not no earlier than the Latest Maturity Date and (ii) a Weighted Average Life to Maturity of no less than $10,000,000 and the Weighted Average Life to Maturity as then in integral multiples effect for the Tranche of $1,000,000 in excess thereof)then outstanding Term Loans with the then longest Weighted Average Life to Maturity, (ii) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for such Incremental Term Loans as of the date on which of incurrence of such Tranche of Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” so that the Effective Yield applicable to such tranche is no greater than 0.50% per annum higher than the Effective Yield applicable to the Initial Term Loans; provided that if the LIBO Rate Floor or Base Rate floor for such Incremental Term Loan Commitments are requested is greater than the LIBO Rate Floor or Base Rate floor, respectively, for the then outstanding Initial Term Loans, any resulting increase in the Effective Yield on account of such increased LIBO Rate Floor or Base Rate floor shall be implemented by increasing the LIBO Rate Floor or Base Rate floor applicable to become effective such Initial Term Loans, and (iii) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (A) and (B)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the “Increased Amount Date”)application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans (but mandatory prepayments shall not be required on a greater than pro rata basis with the Initial Term Loans) and such other differences as may be agreed to by the Administrative Agent, (ii) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Subsidiaries Guaranty, on a pari passu basis with all other Term Loans secured by the Security Agreements and guaranteed under each such Subsidiaries Guaranty, (iii) whether each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are Commitment Agreement as provided in Section 2.01(a) and such Term Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (xi) the Incremental Term Loan Conditions shall be satisfied.
(a) At the time of the provision of Incremental Term Loan Commitments or commitments pursuant to make term loans with pricing and/or amortization terms different from this Section 2.16, the Term Loans (“Other Term Loans”).
(b) The Borrower Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit L (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other Term Loans shall be no earlier than agreed upon upfront or arrangement fees owing to the Maturity DateAdministrative Agent), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Conditions are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.16 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (ivSchedule 1.01(b) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (j) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued at the Applicable Margin relating Borrower’s expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(b) Notwithstanding anything to the contrary contained above in this Section 2.16, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, etc.), provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately; and
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(a)) on a pro rata basis. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply Lenders making new Incremental Term Loans add such Incremental Term Loans to any conversion the then outstanding Borrowings of LIBO Rate Term Loans to ABR Loans reasonably required by of such Tranche, it is acknowledged that the Administrative Agent to effect the foregoing. If any thereof may result in such new Incremental Term Loan is to be allocated to Loans having short Interest Periods i.e., an existing Interest Period for a that began during an Interest Period then applicable to outstanding LIBO Rate Loan, then Term Loans of such Tranche and which will end on the interest rate thereon for last day of such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption AgreementPeriod). In additionconnection therewith, it is hereby agreed that, to the extent any the Incremental Term Loans are not Other to be so added to the then outstanding Borrowings of Term Loans of such Tranche which are maintained as LIBO Rate Term Loans, the scheduled amortization payments under Section 2.07(a) required to be Lenders that have made after the making of such Incremental Term Loans shall be ratably increased entitled to receive from the Borrower such amounts, as reasonably determined by the aggregate principal amount of such respective Lenders, to compensate them for funding the new Incremental Term LoansLoans of the respective Tranche during an existing Interest Period (rather than at the beginning of the respective Interest Period based upon rates then applicable thereto). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Performance Sports Group Ltd.)
Incremental Term Loan Commitments. (a) The Borrower maySo long as the Incremental Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, by the Corporation shall have the right at any time and from time to time and upon at least 5 Business Days' prior written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time Agent, to time, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from on one or more Incremental Term occasions that one or more Lenders (and/or one or more other Persons which may include any existing Lenderwill become -27- Lenders as provided below) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and, subject to the terms and conditions contained in this Agreement, make Incremental Term Loans pursuant thereto; it being requested understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Corporation, (ii) until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent an Incremental Term Loan Commitment Agreement as provided in clause (b) of this Section 1.19 and (y) the other conditions set forth in Section 1.19(b) shall have been satisfied, such Lender shall not be obligated to fund any Incremental Term Loans, (iii) any Lender (or, in the circumstances contemplated by clause (vi) below, any other Person which will qualify as an Eligible Transferee) may so provide an Incremental Term Loan Commitment without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Loan Commitment Requirements), (iv) each provision of Incremental Term Loan Commitments pursuant to this Section 1.19 on a given date shall be in an a minimum aggregate amount (for all Lenders (including in the circumstances contemplated by clause (vi) below, Eligible Transferees who will become Lenders)) of not less than at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Term Loan Commitments permitted to be provided pursuant to this Section 1.19, when combined with the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to Section 1.20, shall not exceed $200,000,000, (vi) if (A) after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Term Loan Commitments pursuant to this Section 1.19, the Corporation has not received Incremental Term Loan Commitments in an aggregate amount equal to that amount of Incremental Term Loan Commitments which the Corporation desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation as provided below) or (B) the Corporation is obligated to request an Incremental Term Loan Commitment from one or more Eligible Transferees that is not already a Lender in order to comply with the requirements of subclause (y) of the proviso appearing in Section 1.20(a)(vi), then the Corporation may request Incremental Term Loan Commitments from Persons reasonably acceptable to the Administrative Agent which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency (iiin circumstances contemplated by preceding clause (A)) or the date amount required to comply with the requirements of subclause (y) of the proviso appearing in Section 1.20(a)(vi) (in the circumstances contemplated by preceding subclause (B)), as the case may be, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, PROVIDED that (x) any such Incremental Term Loan Commitments are requested to become effective Commitment provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (the “Increased Amount Date”), for such Eligible Transferee) of at least $5,000,000 and (iiiy) whether such any request of Incremental Term Loan Commitments are from any such Person in the circumstances contemplated by subclause (A) of this clause (vi) above must be accompanied by a request for an Incremental Revolving Loan Commitment from such Person in accordance with the requirements of Section 1.20(a), with the aggregate amount of the Incremental Loan Commitments to be provided by such Person pursuant to such requests to be allocated among the Incremental Term Loan Commitments or commitments Commitment and the Incremental Revolving Loan Commitment to make term loans with pricing and/or amortization terms different from be provided by such Person on a PRO RATA basis (based on the aggregate outstanding principal amount of all Term Loans at such time and the Total Revolving Loan Commitment as in effect at such time) and (“Other Term Loans”)vii) all actions taken by the Corporation pursuant to this Section 1.19 shall be done in coordination with the Administrative Agent.
(b) The Borrower In connection with any provision of Incremental Term Loan Commitments pursuant to this Section 1.19, (i) the Corporation, the Administrative Agent and each such Lender or other Eligible Transferee (each, an "INCREMENTAL TERM LOAN LENDER") which agrees to provide an Incremental Term Lender Loan Commitment shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and substantially in the form of Exhibit L (appropriately completed), with the effectiveness of such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Lender's Incremental Term Loan Commitment to occur upon delivery of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify to the terms Administrative Agent, the payment of any fees required in connection therewith (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent) and the satisfaction of the applicable Incremental Term Loans; provided that (iother conditions in this Section 1.19(b) to the Other Term Loans shall rank pari passu or junior in right reasonable satisfaction of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of Incremental Loan Commitment Requirements and any Other other conditions precedent agreed to by the Corporation that may be set forth in the respective Incremental Term Loans Loan Commitment Agreement shall be no earlier than the Maturity Datehave been satisfied, and (iii) the terms applicable Corporation shall deliver to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) an opinion or opinions, in form and furnished substance reasonably satisfactory to the other parties hereto.
(d) Notwithstanding Administrative Agent, from counsel to the foregoingCorporation reasonably satisfactory to the Administrative Agent and dated such date, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on covering such of the date of such effectiveness, the conditions matters set forth in paragraphs (b) and (c) the opinions of Section 4.02 shall be satisfied and counsel delivered to the Administrative Agent shall have received a certificate on the Initial Borrowing Date pursuant to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation Section 5.02 as required by the relevant Incremental Assumption Agreement and, to the extent required may be reasonably requested by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) matters as the Administrative Agent may reasonably require request. The Administrative Agent shall promptly notify each Lender as to assure that the effectiveness of each Incremental Term Loan Commitment Agreement, and at such time (i) Schedule I shall be deemed modified to reflect the Incremental Term Loans are secured by Loan Commitments of the Collateral ratably with Incremental Term Loan Lenders providing same and (or, ii) to the extent agreed requested by the applicable any Incremental Term Lenders in Loan Lender, Term Notes will be issued at the applicable Incremental Assumption AgreementCorporation's expense, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans Lender, to be in conformity with the requirements of Section 1.06 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to by such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingLender.
(ec) Each In connection with each incurrence of Incremental Term Loans pursuant to Section 1.01(f), the parties hereto Lenders and the Corporation hereby agrees that agree that, notwithstanding anything to the contrary contained in this Agreement, the Corporation and the Administrative Agent may take any and all action such actions as may be reasonably necessary to ensure that (i) all Incremental Lenders with outstanding Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included continue to participate in each Borrowing of outstanding Term Loans (after giving effect to the incurrence of Incremental Term Loans pursuant to Section 1.01(f)) on a pro rata PRO RATA basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate , including by adding the Incremental Term Loans to ABR be so incurred to the then outstanding Borrowings of Term Loans reasonably required by the Administrative Agent to effect the foregoing. If any on a PRO RATA basis even though as a result thereof such new Incremental Term Loan is Loans (to the extent required to be allocated to an existing maintained as Eurodollar Loans) may effectively have a shorter Interest Period for a LIBO Rate Loanthan the then outstanding Borrowings of Term Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In additionit is hereby agreed that, to the extent any the Incremental Term Loans are not Other to be so incurred or added to the then outstanding Borrowings of Term Loans which are maintained as Eurodollar Loans, the scheduled amortization payments under Section 2.07(a) required to be Lenders that have made after the making of such Incremental Term Loans shall be ratably increased entitled to receive from the Corporation such amounts, as reasonably determined by the aggregate principal amount of such respective Lenders, to compensate them for funding the various Incremental Term LoansLoans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The So long as the Incremental Loan Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the Borrower mayshall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the date which is 12 months prior to the Revolving Loan Maturity Date that one or more Lenders (and/or one or more other Persons which are Eligible Assignees and which will become Lenders) provide Incremental Term Loan Commitments to the Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no NEWYORK 9228865 (2K) -60- Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of and the Borrower) from time to time, request Borrower an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 2.15, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Eligible Assignee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in Dollars, (iv) the amount of each Tranche of Incremental Term Loan Commitments shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of Incremental Term Loans (including Eligible Assignees who will become Lenders) of at least (I) $20,000,000 and in integral multiples of $5,000,000 in excess thereof, in the case of Incremental Term Loans to be made pursuant to a new Tranche of Incremental Term Loans, and (II) $20,000,000 and in integral multiples of $5,000,000 in excess thereof, in the case of Incremental Term Loans to be made pursuant to (and to constitute a part of) an existing Tranche of Incremental Term Loans as contemplated by the proviso in the first sentence of Section 2.15(c), (v) the aggregate amount not to exceed $80,000,000 from one or more of all Incremental Term Lenders Loan Commitments provided pursuant to this Section 2.15, when combined with the aggregate amount of all Incremental RL Commitments provided pursuant to Section 2.16, shall not exceed the Maximum Incremental Commitment Amount, (which may include vi) the up-front fees and, if applicable, any existing Lender) willing unutilized commitment fees and/or other fees, payable to provide each Incremental Term Loan Lender in respect of each Incremental Term Loan Commitment shall be separately agreed to by the Borrower, the Administrative Agent and each such Incremental Term Loan Lender, (vii) each Tranche of Incremental Term Loans in their own discretion. Such notice shall (I) have an Incremental Term Loan Maturity Date no earlier than the Revolving Loan Maturity Date and (II) be subject to the Applicable Margins as are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans, (iviii) the amount proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 8.05(c), (ix) each Incremental Term Loan Commitment Agreement shall specifically designate the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans) unless the requirements of $1,000,000 in excess thereofSection 2.15(c) are satisfied), (iix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the date other applicable Credit Documents and shall be secured by the Security Documents, and guaranteed under the Subsidiaries Guaranty, on which a pari passu basis with all other Obligations secured by the Security Documents and guaranteed under the Subsidiaries Guaranty, and (xi) each Lender (including any Eligible Assignee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in Section 2.01(c) and such Loans shall thereafter be deemed to become effective (the “Increased Amount Date”), (iii) whether such be Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from Loans under such Tranche for all purposes of this Agreement and the Term Loans (“Other Term Loans”)other applicable Credit Documents.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender or other Eligible Assignee which agrees to provide an Incremental Term Lender Loan Commitment (each, NEWYORK 9228865 (2K) -61- an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as Term Loan Commitment Agreement, with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment of provided therein to occur on the date set forth in such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior Loan Commitment Agreement, which date in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans event shall be no earlier than the Maturity Datedate on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (iiix) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Incremental Loan Commitment Requirements are satisfied, (including the Term Loans made on the Closing Date and y) all other Other Term Loans) conditions set forth in this Section 2.15 shall have been satisfied, and (ivz) all other conditions precedent that may be set forth in such Incremental Term Loan Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the Weighted Average Life to Maturity effectiveness of any Other each Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin Loan Commitment Agreement, and at such time, (which, for purposes of this sentence only, i) Schedule I shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued, at the Applicable Margin relating Borrower’s expense, to such Incremental Term Loan Lender in conformity with the requirements of Section 2.05.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loans Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, C-1, C-2, C-3, etc.); provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Incremental Term Loans, so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Maturity Date and shall have the same Applicable Margins as the Tranche of Incremental Term Loans to which the new Incremental Term Loans are being added;
(cii) Each of the parties hereto hereby agrees that, upon new Incremental Term Loans shall have the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the same Scheduled Incremental Term Loan Commitments evidenced thereby Repayment Dates as provided for in Section 9.02(f). Any then remain with respect to the Tranche to which such deemed amendment may be memorialized in writing by the Administrative Agent new Incremental Term Loans are being added (with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no amount of each Scheduled Incremental Term Loan Commitment shall become effective under this Section 2.20 unless Repayment applicable to such new Incremental Term Loans to be the same (ion a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Incremental Term Loan Repayment of the respective Tranche proportionately); and
(iii) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be ratably increased by added to (and form part of) each Borrowing of outstanding Incremental Term Loans of the aggregate principal amount respective Tranche on a pro rata basis (based on the NEWYORK 9228865 (2K) -62- relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Incremental Term Loans of the respective Tranche. To the extent the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term LoansLoans to the then outstanding Borrowings of Eurodollar Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Eurodollar Loans of such Tranche and which will end on the last day of such Interest Period). In connection therewith, the Borrower hereby agrees to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Eurodollar Loans during an existing Interest Period on such basis as may be agreed by the Borrower and the respective Lender or Lenders as may be provided in the respective Incremental Term Loan Commitment Agreement.
Appears in 1 contract
Samples: Credit Agreement (EnerSys)
Incremental Term Loan Commitments. (a) The U.S. Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, Commitments in an aggregate amount not to exceed $80,000,000 the Incremental Amount from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretionLoan Commitments; provided that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate minimum increments of $5,000,000 and a minimum amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereofor equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the “Increased Amount Date”date of such notice), and (iii) whether such Incremental Term Loan Commitments are commitments to be Term Loan Commitments make additional Tranche A Loans, commitments to make additional Tranche B Loans or commitments to make term loans Term Loans with pricing and/or amortization terms different from the Term Tranche A Loans and Tranche B Loans (“Other Term Loans”).
(b) The U.S. Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans to be made thereunder; provided that (i) without the Other Term Loans shall rank pari passu or junior in right prior written consent of payment and of security with the Term Loans andRequired Lenders, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Tranche B Maturity Date, Date and (iiiy) the terms applicable weighted average life to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Tranche B Loans, and (ii) the other terms of any Term Loans. If , to the Applicable Margin (which, for purposes of extent not consistent with this sentence onlyAgreement, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating reasonably satisfactory to the Term Loans or the Credit-Linked Deposits, Administrative Agent. The Administrative Agent shall promptly notify each Lender as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such each Incremental Term Loan Commitment minus 0.25%.
(c) Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments Commitment evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties heretothereby.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 2.25 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Financial Officer of the U.S. Borrower, (ii) at the time of, and after giving effect to, the incurrence of the Incremental Term Loans to be made under such Incremental Term Loan Commitment, the U.S. Borrower would be in Pro Forma Compliance, and (iii) the Administrative Agent shall have received customary (with sufficient copies for each of the Incremental Term Lenders) legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, an officer’s certificate consistent with those delivered on the Closing Restatement Date under Section 4.01 and such additional customary documents and filings clauses (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loansa)(i), (iiia)(ii), (c)(ii)(B) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (ivd) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingSection 4.02.
(ed) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans), when originally made, are included in each Borrowing of outstanding Term Tranche A Loans or Tranche B Loans, as the case may be, on a pro rata basis. The Borrower agrees This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Eurocurrency Tranche A Borrowing or Eurocurrency Tranche B Borrowing, as the case may be, to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding Eurocurrency Tranche A Borrowing or Eurocurrency Tranche B Borrowing, as the case may be, on a pro rata basis, even though as a result thereof such Incremental Term Loan may effectively have a shorter Interest Period than the Term Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that Section 2.16 shall apply to any would prohibit such an initial Interest Period). Any conversion of LIBO Rate Eurocurrency Term Loans to ABR Term Loans reasonably required by the Administrative Agent preceding sentence shall be subject to effect the foregoingSection 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate LoanEurocurrency Term Borrowing then, then subject to Section 2.07, the interest rate thereon applicable to such Incremental Term Loan for the remainder of such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Tranche A Loans or Tranche B Loans, the scheduled amortization payments under Section 2.07(aSections 2.11(a)(i) or 2.11(a)(ii), as the case may be, required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower may, Each Borrowing of Revolving Credit Loans under this Agreement shall be granted by written notice the Revolving Credit Lenders pro rata on the basis of their then-applicable Revolving Credit Commitment Percentages with respect to the Administrative Agent (signed by a Responsible Officer applicable Class. Each Borrowing of the Borrower) from time to time, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice under this Agreement shall set forth (i) be granted by the amount Lenders of the relevant Class thereof pro rata on the basis of their then-applicable Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (ii) for the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lenderapplicable Class. Each Incremental Assumption Agreement shall specify the terms Borrowing of the applicable Incremental Term Loans; provided that (i) the Other Term Additional/Replacement Revolving Credit Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, under this Agreement shall be amended to granted by the extent (but only to the extent) necessary to reflect the existence and terms Lenders of the Incremental Term Loan relevant Class thereof pro rata on the basis of their then-applicable Additional/Replacement Revolving Credit Commitments evidenced thereby as provided for in Section 9.02(f)the applicable Class. Any such deemed amendment may Each Borrowing of Extended Revolving Credit Loans under this Agreement shall be memorialized in writing granted by the Administrative Agent with Lenders of the Borrower’s consent relevant Class thereof pro rata on the basis of their then-applicable Extended Revolving Credit Commitments for the applicable Class. It is understood that (a) no Lender shall be responsible for any default by any other Lender in its obligation to make Loans hereunder and that each Lender, severally and not jointly, shall be obligated to make the Loans provided to be unreasonably withheld) made by it hereunder, regardless of the failure of any other Lender to fulfill its commitments hereunder, and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received other than as expressly provided herein with respect to a certificate to that effect dated such date and executed Defaulting Lender, failure by a Responsible Officer Lender to perform any of its obligations under any of the Borrower, (ii) the Administrative Agent Credit Documents shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date not release any Person from performance of its obligations under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingany Credit Document.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Samples: Incremental Agreement to Credit Agreement (Snap One Holdings Corp.)
Incremental Term Loan Commitments. (a) The So long as no Default or Event of Default then exists or would result therefrom, the Borrower mayshall, in consultation with the Administrative Agent, have the right to request on one or more occasions after the Closing Date and prior to the Term Loan Maturity Date that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Term Loan Commitments and, subject to the terms and conditions contained in this Agreement and the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any request by written notice the Borrower, and until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 1.14 and (y) the other conditions set forth in Section 1.14(b) shall have been satisfied, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (or any other Person which will qualify as an Eligible Assignee) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each provision of Incremental Term Loan Commitments pursuant to this Section 1.14 for any Lender shall be in an amount of at least $2,500,000, (iv) the aggregate amount of all Incremental Term Loan Commitments permitted to be provided pursuant to this Section 1.14 and the aggregate principal amount of all Incremental Term Loans permitted to be made pursuant to Section 1.01(b) shall not, in an aggregate amount not either case, exceed FIFTY MILLION DOLLARS ($50,000,000.00), (v) the Applicable Margin with respect to exceed $80,000,000 from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice Loan and the fees payable to any Lender providing an Incremental Term Loan Commitment shall be as set forth in the relevant Incremental Term Loan Commitment Agreement, (ivi) the amount maturity date for any such Incremental Term Loan shall be the Term Loan Maturity Date, (vii) the Incremental Scheduled Repayments in respect of the Incremental Term Loan Commitments being requested (which and Incremental Term Loans shall be as set forth in an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof)this Agreement, (iiviii) the date on which applicable Incremental Term Loan shall only be permitted hereunder if after giving effect to such Incremental Term Loan Commitments are requested to become effective (on a Pro Forma Basis, the “Increased Amount Date”), (iii) whether such Incremental Term Loan Commitments are Consolidated Senior Leverage Ratio is at least 0.50 less than the ratio required to be Term Loan Commitments or commitments maintained at such time by Section 10.10 and (ix) all actions taken by the Borrower pursuant to make term loans this Section 1.14 shall be done in coordination with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)Administrative Agent.
(b) The Borrower At the time of any provision of Incremental Term Loan Commitments pursuant to this Section 1.14, the Borrower, the Administrative Agent and each Lender or other Eligible Assignee (each an "Incremental Term Lender Loan Lender") which agrees to provide an Incremental Term Loan Commitment shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and substantially in the form of Exhibit 1.14 (appropriately completed), with the effectiveness of such other documentation as the Administrative Agent shall reasonably specify to evidence the Lender's Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify to occur upon the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior date set forth in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each Agreement following delivery thereof to the Administrative Agent and the payment of the parties hereto hereby agrees that, upon any fees required in connection therewith. The Administrative Agent shall promptly notify each Incremental Term Loan Lender as to the effectiveness of any each Incremental Assumption Term Loan Commitment Agreement, this Agreement and at such time Schedule 1.01 shall be amended to the extent (but only to the extent) necessary deemed modified to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuingLenders.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, Commitments in an aggregate amount not to exceed $80,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Incremental Term Lenders (which may include any existing Lender, but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term Loans in their own sole discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate minimum increments of $5,000,000 and a minimum amount of not less than $10,000,000 and 10,000,000, or equal to the applicable remaining Incremental Amount or, in integral multiples of $1,000,000 in excess thereofeach case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or (x) commitments to make term loans with pricing terms identical to (and which shall together with any then outstanding Initial Term Loans, as applicable, form a single Class of) the Initial Term Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or amortization other terms different from the Initial Term Loans (“Other Incremental Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that provided, that:
(i) the Other any commitments to make additional Initial Term Loans shall have the same terms as the Initial Term Loans, and shall form part of the same Class of Initial Term Loans;
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu equally and ratably or junior in right of payment and of security with the existing Term Loans;
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Maturity Date applicable to the Term Loans in effect at the date of incurrence of such Other Incremental Term Loans and, except as to pricing, amortization and amortization, final maturity datedate and participation in mandatory prepayments (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the applicable Incremental Term Lenders in their sole discretion), shall have (x) the same terms as the Term Loans or (y) such other terms as shall either be reasonably satisfactory not materially more restrictive to Parent and its subsidiaries taken as a whole as determined in good faith by Parent than the terms applicable to the Administrative Agent, then outstanding Term Loans or such terms and conditions shall not apply until all then outstanding Term Loans are no longer outstanding (ii) unless such more restrictive terms are also added for the final maturity date benefit of the then outstanding Term Loans); provided that if the Effective Yield of any Other Incremental Term Loan secured on a pari passu basis with the existing Term Loans exceeds the Effective Yield of the Initial Term Loans by more than 50 basis points, the Applicable Margin for the Initial Term Loans shall be no earlier than increased to the Maturity Dateextent necessary so that, after giving effect to such increase, the Effective Yield of the Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 50 basis points (iii) this proviso, the terms “MFN Protection”); provided, further, that the MFN Protection shall not be applicable to each series of Other any Incremental Term Loans shall not require any prepayment thereof in excess of that are incurred more than twelve (12) months after the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and ClosingAmendment No. 2 Effective Date;
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If Loans with the Applicable Margin longest remaining Weighted Average Life to Maturity;
(which, for purposes of this sentence only, v) [reserved];
(vi) such Other Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Term Loans in any mandatory prepayment hereunder;
(vii) there shall be deemed to include all upfront no borrower (other than the Borrower) or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicableguarantor (other than the Loan Parties) relating to in respect of any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Commitments; and
(viii) Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall not be adjusted to be equal to secured by any asset of Parent or its Subsidiaries other than the Applicable Margin relating to such Collateral (other than Liens on proceeds of the Incremental Term Loan Commitment minus 0.25%.
(c) Loans). Each of the parties party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right (in consultation and coordination with the Administrative Agent) to request, at any time after the Syndication Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to the Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent and the Borrower an Incremental Term Loan Commitment Agreement as provided in clause (signed by b) of this Section 2.14, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Eligible Transferee who will become a Responsible Officer Lender) may so provide an Incremental Term Loan Commitment without the consent of the Borrowerany other Lender, (iii) from time to time, request each Tranche of Incremental Term Loan Commitments, and all Incremental Term Loans to be made pursuant thereto, shall be denominated in an Dollars, (iv) the amount of each Tranche of Incremental Term Loan Commitments (whether constituting a new Tranche of Incremental Term Loans or being added to (and thereafter constituting a part of) a then outstanding Tranche of Term Loans) shall be in a minimum aggregate amount not to exceed $80,000,000 from one or more for all Lenders which provide an Incremental Term Lenders Loan Commitment under such Tranche of Incremental Term Loans (which including Eligible Transferees who will become Lenders) of at least $5,000,000 (or such lower amount as may include be acceptable to the Administrative Agent) and in integral multiples of $5,000,000 in excess thereof (or such other integral multiple as may be acceptable to the Administrative Agent), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.14 and the aggregate principal amount of all Incremental Term Loans to be made pursuant thereto shall not exceed the Maximum Incremental Term Loan Commitment Amount at such time, (vi) the up-front fees, original issue discount, and, if applicable, any existing Lender) willing unutilized commitment fees and/or other fees, payable to provide each Incremental Term Loan Lender in respect of each Incremental Term Loan Commitment shall be separately agreed to by the Borrower and each such Incremental Term Loan Lender, (vii) except to the extent permitted by Section 2.14(c), each Tranche of Incremental Term Loans shall (A) have an Incremental Term Loan Maturity Date of no earlier than the B Term Loan Maturity Date, (B) have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in their own discretion. Such notice shall effect for the B Term Loans and (C) be subject to the Applicable Margins as are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans; provided that, if the Applicable Margins for such Tranche of Incremental Term Loans (iwhich, for such purposes only, shall be deemed to include all up-front or similar fees or original issue discount (amortized over the shorter of (x) the amount life of such Tranche of Incremental Term Loans and (y) four years) payable to all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans and any LIBO Rate floor or Base Rate floor applicable to such Incremental Term Loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Incremental Term Loan Lenders providing such Tranche of Incremental Term Loans) determined as of the initial funding date for such Tranche of Incremental Term Loans exceeds the Applicable Margins (which, for such purposes only, shall be deemed to include all up-front or similar fees or original issue discount (amortized over four years) originally payable to all Lenders providing the B Term Loans or any Incremental Term Loans theretofore incurred and any LIBO Rate floor or Base Rate floor applicable to the B Term Loans or such Incremental Term Loans) relating to the B Term Loans and then outstanding by more than 0.50%, then the Applicable Margins relating to the B Term Loans and then outstanding shall be adjusted to be equal to the Applicable Margins (determined as provided above) relating to such Tranche of Incremental Term Loans minus 0.50%, (viii) the proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 7.08(b), (ix) each Incremental Term Loan Commitment Agreement shall specifically designate the Tranche or Tranches of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as the A Term Loans, B Term Loans or any other then existing Tranche of not less than $10,000,000 and in integral multiples Term Loans) unless the requirements of $1,000,000 in excess thereofSection 2.14(c) are satisfied), (iix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the date other applicable Credit Documents and shall be secured by the Security Documents, and guaranteed under the Guaranty, on which a pari passu basis with all other Obligations secured by the Security Documents and guaranteed under the Guaranty, and (xi) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iiiCommitment Agreement as provided in Section 2.01(c) whether and such Incremental Term Loan Commitments are Loans shall thereafter be deemed to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Incremental Term Loans (“Other Term Loans”)under such Tranche for all purposes of this Agreement and the other applicable Credit Documents.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.14, the Borrower, each other Credit Party, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as Term Loan Commitment Agreement, with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment Commitments provided therein (and the making of the respective Incremental Term Loans thereunder) to occur on the date set forth in such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior Loan Commitment Agreement, which date in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans event shall be no earlier than the Maturity Datedate on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any Affiliate thereof)), (iiix) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, (including the Term Loans made on the Closing Date and y) all other Other Term Loans) conditions set forth in this Section 2.14 shall have been satisfied, and (ivz) all other conditions precedent that may be set forth in such Incremental Term Loan Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the Weighted Average Life to Maturity effectiveness of any Other each Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin Loan Commitment Agreement, and at such time, (which, for purposes of this sentence only, i) Schedule 1.01(a) shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued, at the Applicable Margin relating Borrower’s expense, to such Incremental Term Loan Lender in conformity with the requirements of Section 2.05.
(c) Notwithstanding anything to the contrary contained above in this Section 2.14, the Incremental Term Loans Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, C-1, C-2, C-3, etc.), provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, a then outstanding Tranche of Term Loans so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended have the same Maturity Date and shall have the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added; provided, however, if the up-front fees and/or original issue discount (amortized over the shorter of (x) the life of such Tranche of Incremental Term Loans and (y) four years) payable to each Incremental Term Loan Lender providing such Tranche of Incremental Term Loans exceeds the up-front fees and/or original issue discount (amortized over the shorter of (x) the life of such Tranche of Term Loans and (y) four years) originally payable to the extent (but only Lenders that provided the Tranche of Term Loans to which such Incremental Term Loans are to be added by more than 0.50%, then the Applicable Margins for such Tranche of Term Loans shall be increased as, and to the extent) , necessary to reflect eliminate any such deficiency in excess of 0.50%;
(ii) the existence and terms of the new Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not Loans to be unreasonably withheld) and furnished made pursuant to the other parties hereto.
(d) Notwithstanding the foregoing, no such Incremental Term Loan Commitment Agreement shall become effective under this Section 2.20 unless have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Tranche of Term Loans to which such new Incremental Term Loans are being added (iwith the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche of Term Loans to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Term Loan Repayments of the respective Tranche of Term Loans proportionately); and
(iii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basisbasis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Lenders making new Incremental Term Loans add such Incremental Term Loans to ABR the then outstanding Borrowings of LIBOR Loans reasonably required by of the Administrative Agent to respective Tranche of Term Loans, it is acknowledged that the effect the foregoing. If any thereof may result in such new Incremental Term Loan is Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to be allocated outstanding LIBOR Loans of the respective Tranche and which will end on the last day of such Interest Period). In connection therewith, the Borrower hereby agrees to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding LIBOR Loans during an existing Interest Period for a LIBO Rate Loanon such basis as may be agreed by the Borrower, then the interest rate thereon for such Interest Period Administrative Agent and the other economic consequences thereof shall respective Lender or Lenders as may be as set forth provided in the applicable Incremental Assumption Agreement. In addition, to the extent any respective Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansLoan Commitment Agreement.
Appears in 1 contract
Samples: Credit Agreement (Semtech Corp)
Incremental Term Loan Commitments. (a) The Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 100,000,000 from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”"INCREASED AMOUNT DATE"), (iii) whether such Incremental Term Loan Commitments are to be commitments to make additional Term Loan Commitments Loans or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”"OTHER TERM LOANS").
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.250.50%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.250.50%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s 's consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 2.19 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Collateral Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iiiii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Senior Secured Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date 4.5 to 1.0 and (iviii) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower mayIn addition to any other mandatory commitment reductions pursuant to this Section 2.06, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, in an aggregate amount not to exceed $80,000,000 from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of each Lender provided pursuant to a particular Incremental Term Loan Commitment Agreement shall be permanently reduced on each Incremental Term Loan Borrowing Date on which Incremental Term Loans are incurred pursuant to such Incremental Term Lender. Each Loan Commitment Agreement in an amount equal to the aggregate principal amount of Incremental Assumption Term Loans made by such Lender pursuant to such Incremental Term Loan Commitment Agreement on such date, (ii) the Incremental Term Loan Commitment of each Lender provided pursuant to a particular Incremental Term Loan Commitment Agreement shall specify terminate at 5:00 p.m. (New York City time) on the terms earliest of (A) the applicable date specified in such Incremental Term Loans; provided that Loan Commitment Agreement and (iB) the Other Term Loan Maturity Date (whether or not any Incremental Term Loans shall rank pari passu or junior are incurred on either such date). Borrower may (unless otherwise provided in right of payment and of security with the respective Incremental Term Loans andLoan Commitment Agreement), except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory upon notice to the Administrative Agent, (ii) terminate the final maturity date of any Other Incremental Term Loans shall be no earlier than Loan Commitments, or from time to time permanently reduce the Maturity Date, (iii) the terms applicable to each series of Other Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating Loan Commitments provided pursuant to any Incremental Term Loan Commitment exceeds Agreement, in an integral multiple of $1.0 million (or as may otherwise be provided in the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such respective Incremental Term Loan Commitment minus 0.25%.
(cAgreement) Each in the case of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended partial reductions to the extent (but only aggregate amount of Incremental Term Loan Commitments provided pursuant to the extent) necessary respective Incremental Term Loan Commitment Agreement; provided that each such reduction shall apply proportionately to reflect the existence and terms of permanently reduce the Incremental Term Loan Commitments evidenced thereby as of various Lenders provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished pursuant to the other parties hereto.
(d) Notwithstanding the foregoing, no respective Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) Subject to the terms and conditions hereof and in the applicable Incremental Assumption Agreement, the Incremental Term Loan Lenders severally agree to make incremental term loans (each, an “Incremental Term Loan”) to HCLP in an amount for each Incremental Term Loan Lender not to exceed the amount of the Incremental Term Loan Commitment of such Incremental Term Loan Lender. The Borrower Incremental Term Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by HCLP and notified to the Administrative Agent in accordance with the terms of the Incremental Assumption Agreement and Section 3.5
(b) HCLP may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request Incremental Term Loan Commitments, Commitments in an aggregate amount not to exceed $80,000,000 the Incremental Amount from one or more Incremental Term Loan Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion; provided, that each Incremental Term Loan Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples minimum increments of $1,000,000 in excess thereof), and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount) and (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)effective.
(bc) The Borrower HCLP and each Incremental Term Loan Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Loan Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans to be made thereunder; provided, that no Incremental Term Loans shall be made unless the following conditions are met: (i) Hanover and HCLP shall be in pro forma compliance with Section 8.1 after giving effect to the incurrence of such Incremental Term Loans (and any repayment of any Indebtedness from the proceeds of such Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent), (ii) no Default or Event of Default would exist prior to or after giving pro forma effect to the incurrence of such Incremental Term Loans (and any repayment of Indebtedness from the proceeds of such Incremental Term Loans), (iii) pro forma for the incurrence of such Incremental Term Loans, Available Revolving Commitments shall not be less than $100,000,000, (iv) the final maturity date of any Other the Incremental Term Loans shall be no earlier than the Maturity seven-year anniversary of the Closing Date, (iiiv) the terms applicable weighted average life to each series of Other Term Loans shall not require any prepayment thereof in excess maturity of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity six-year anniversary of the Term Loans. If Closing Date, (vi) as of the Applicable Margin date of such borrowing (whichor promptly thereafter, for purposes in the event that the proceeds of this sentence only, such borrowing shall be deemed used to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loansrepay the 2001A Equipment Lease Transaction and/or the 2001B Equipment Lease Transactions), the assets pledged, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%Closing Date, to secure the Applicable Margin relating to 2001A Equipment Lease Transaction and 2001B Equipment Lease Transactions shall secure the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
Obligations on a first priority basis, (c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (ivii) on the date of such effectiveness, the conditions set forth in paragraphs (b) Section 6.1 shall be satisfied, and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (iiviii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, Agreement. The Administrative Agent shall promptly notify each Lender as to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings effectiveness of each Incremental Assumption Agreement.
(including amendments to the Mortgages and other Security Documents and title endorsement bringdownsd) as the Administrative Agent may reasonably require to assure that HCLP shall repay the Incremental Term Loans are secured by on the Collateral ratably with dates (or, to including the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such relevant Incremental Term Loan Commitments Maturity Date) and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as amounts set forth in the applicable relevant Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The US Borrower may, from time to time during the term of the Term A Facility, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to timeAgent, request Incremental Term Loan Commitments, Commitments which shall have substantially similar terms to the Term A Commitments (other than with respect to amortization and interest rate spread) in an aggregate amount not to exceed $80,000,000 the Incremental Term Amount from one or more Incremental Term Lenders (Lenders, which may include any existing Lender) willing to provide such ; provided, that each Incremental Term Loans Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld and, if withheld, the reason therefor shall be specified in their own discretionwriting). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate a minimum amount of not less than $10,000,000 50,000,000, a maximum amount (together with all prior Incremental Term Commitments) of $300,000,000 and in integral multiples minimum increments of $1,000,000 in excess thereof), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”1,000,000).
(b) The US Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the applicable Incremental Term LoansAdvances to be made thereunder with respect to interest rate spreads (the “Incremental Term Loan Applicable Margin”); provided that provided, that, without the prior written consent of the Required Lenders, (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Incremental Term Loans Advances shall be no earlier than the Maturity Date, Termination Date with respect to the Term A Facility and (iiiii) the terms applicable average life to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity maturity of any Other Incremental Term Loans Advances shall be no shorter than the remaining Weighted Average Life average life to Maturity maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to loans under the Term Loans or the Credit-Linked Deposits, A Facility. The Administrative Agent shall promptly notify each Lender as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such each Incremental Term Loan Commitment minus 0.25%.
(c) Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments Commitment evidenced thereby as provided for in Section 9.02(f)thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the US Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. Notwithstanding the foregoing, to the extent any terms in the Incremental Term Loan Assumption Agreement are more favorable to the Incremental Term Lenders than the terms of the Term A Facility are to the Term A Lenders (other than pricing terms), the Term A Facility shall be modified to include such more favorable terms to the extent directed by the Administrative Agent, in its sole discretion.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 2.05 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 3.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer the Chief Financial Officer, Treasurer or Assistant Treasurer of the US Borrower, (ii) immediately before and immediately after giving pro forma effect to any such Incremental Term Commitments, no Default shall have occurred and be continuing and the US Borrower and its Subsidiaries shall be in pro forma compliance with all of the covenants set forth in Section 5.04, such compliance to be determined on the basis of the Required Financial Information most recently delivered to the Administrative Agent and the Lender Parties as if the Incremental Term Commitments requested were incurred as Incremental Term Advances on the first day of the fiscal period covered thereby, and (iii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary (with sufficient copies for each of the Incremental Term Lenders) closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required reasonably specified by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The So long as no Default or Event of Default is then in existence, each Borrower mayshall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the date on which the Syndication Date has occurred, and prior to the date which is 12 months prior to the Initial B Term Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to such Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice such Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 2.15, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be made available to a single Incremental Term Loan Borrower and shall be denominated in U.S. Dollars or, if extended to the Canadian Borrower and it has so elected, Canadian Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least U.S. $25,000,000 (or, U.S. $5,000,000 in the case of Incremental Term Loan Commitments to the Canadian Borrower denominated in U.S. Dollars or CDN $5,000,000, in an the case of Incremental Term Loan Commitments to the Canadian Borrower denominated in Canadian Dollars), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 (taking the U.S. Dollar Equivalent of any Incremental Term Loan Commitment denominated in Canadian Dollars at the time of the borrowing thereof), when combined with the aggregate amount of all Incremental RL Commitments provided pursuant to Section 2.16 and the aggregate principal (face) amount of Permitted Junior Debt issued or incurred after the Initial Borrowing Date, shall not to exceed $80,000,000 from 150,000,000 (although, in no event shall the aggregate amount of Canadian Borrower Incremental Term Loans provided pursuant to this Section 2.15 exceed CDN $40,000,000 (or the U.S. Dollar Equivalent thereof rounded to the nearest $1,000,000 increment)); provided that the U.S. Borrower may incur additional Incremental Term Loans and/or obtain Incremental RL Commitments (a “Ratio-Based Incremental Facility”) so long as the Senior Secured Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Calculation Period for which Section 9.01 Financials were required to have been delivered (or, if no Calculation Period has passed, as of the last four quarters ended), in each case, as if such Ratio-Based Incremental Facility (and Revolving Credit Loans in an amount equal to the full amount of any such Incremental RL Commitments) had been outstanding on the last day of such four-quarter period, shall not exceed 3.50 to 1.00, (vi) the proceeds of all Incremental Term Loans incurred by the U.S. Borrower shall be used for working capital and other general corporate purposes (including, without limitation, to finance one or more Incremental Term Lenders Permitted Acquisitions, to pay fees and expenses in connection therewith and/or to prepay then outstanding Revolving Loans (which may include any existing Lenderwith no corresponding reduction in Revolving Loan Commitments), (vii) willing to provide such the proceeds of all Incremental Term Loans incurred by the Canadian Borrower shall be used to finance one or more Permitted Acquisitions and to pay fees and expenses in their own discretion. Such notice connection therewith, (viii) each Incremental Term Loan Commitment Agreement shall set forth (i) specifically designate, with the amount approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofSection 2.15(c) are satisfied), (iiix) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the applicable Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of preceding clauses (vi) and (vii)) and mandatory repayment application provisions (which are governed by Section 5.02); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) an Initial Incremental Term Loan Maturity Date of no earlier than the then latest maturing Tranche of outstanding Term Loans and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided however, that if the Effective Yield for such Incremental Term Loans as of the date on which of incurrence of such Tranche of Incremental Term Loans exceeds the Effective Yield then applicable to any Tranche of then outstanding Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ than those of other Tranches of Term Loans as may be agreed to by the Administrative Agent, (x) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by a given Incremental Term Loan Borrower shall be Obligations of such Incremental Term Loan Commitments are requested Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by each such Security Agreement and guaranteed under each such Guaranty and (xi) each Lender (including any Eligible Transferee who will become a Lender) agreeing to become effective (provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the “Increased Amount Date”)satisfaction of the relevant conditions set forth in this Agreement, (iii) whether make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are Commitment Agreement as provided in Section 2.01(c) and such Loans shall thereafter be deemed to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Incremental Term Loans (“Other Term Loans”)under such Tranche for all purposes of this Agreement and the other applicable Credit Documents.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the respective Incremental Term Loan Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit M (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such the respective Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other Term Loans shall be no earlier than agreed upon up-front or arrangement fees owing to the Maturity DateAdministrative Agent), (iiiy) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Incremental Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued at the Applicable Margin relating respective Incremental Term Loan Borrower’s expense, to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, etc.), provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, the same Maturity Date, the same Applicable Margins and the same currency denomination as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately;
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 2.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(c)) on a pro rata basis; and
(iv) Incremental Term Loans may not be added to an existing Tranche of Term Loans borrowed by the Canadian Borrower. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply Lenders making new Incremental Term Loans add such Incremental Term Loans to any conversion the then outstanding Borrowings of LIBO Rate Loans to ABR or B/A Discount Rate Loans reasonably required by of such Tranche, it is acknowledged that the Administrative Agent to effect the foregoing. If any thereof may result in such new Incremental Term Loan is to be allocated to Loans having short Interest Periods (i.e., an existing Interest Period for a that began during an Interest Period then applicable to outstanding LIBO Rate Loan, then Loans or B/A Discount Rate Loans of such Tranche and which will end on the interest rate thereon for last day of such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption AgreementPeriod). In additionconnection therewith, it is hereby agreed that, to the extent any the Incremental Term Loans are not Other to be so added to the then outstanding Borrowings of Term Loans of such Tranche which are maintained as LIBO Rate Loans or B/A Discount Rate Loans, the scheduled amortization payments under Section 2.07(a) required to be Lenders that have made after the making of such Incremental Term Loans shall be ratably increased entitled to receive from the relevant Borrower such amounts, as reasonably determined by the aggregate principal amount of such respective Lenders, to compensate them for funding the new Incremental Term LoansLoans of the respective Tranche during an existing Interest Period (rather than at the beginning of the respective Interest Period based upon rates then applicable thereto). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Samples: Credit Agreement (BWAY Holding CO)
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right, by written notice to without requiring the Administrative Agent (signed by a Responsible Officer consent of any of the Borrower) Lenders, to request at any time and from time to time, request time that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrower and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Commitment Agreement, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.15 after the Closing Date, on the date of incurrence thereof, when taken together with the aggregate principal amount of Permitted Pari Passu Notes, Permitted Pari Passu Loans and Permitted Junior Debt incurred pursuant to Section 10.04(xxvii)(A)(1) on such date, shall not exceed (x) the then remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Term Loans incurred by the Borrower may be used for any purpose not prohibited under this Agreement, (vii) the Borrower, in consultation with the Administrative Agent, shall specifically designate in the Incremental Term Loan Commitment Agreement the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of $1,000,000 in excess thereofSection 2.15(c) are satisfied), (iiviii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Commitment Agreement, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, except in the case of Extendable Bridge Loans, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for any such Incremental Term Loans incurred prior to the date that is six (6) months after the Closing Date exceeds the Effective Yield then applicable to any then outstanding Term B-12 Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Term B-12 Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” (the “MFN Pricing Test”) and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on which a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested Commitment Agreement as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to become effective be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (the “Increased Amount Date”), (iiixi) whether such all Incremental Term Loan Commitments Commitment Requirements are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”)satisfied.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such (which shall not require the consent of any other documentation as Lender), with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loans shall be no earlier than the Maturity DateLoan Commitments), (iiiy) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule 2.01 shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Term Notes will be issued at the Applicable Margin relating Borrower’s expense to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement; provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees thatrespective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, upon and notwithstanding anything to the effectiveness of any contrary set forth in Section 2.09, such new Incremental Assumption Agreement, this Agreement Term Loans shall be amended added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (but only iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the extent) necessary to reflect then outstanding Borrowings of Term SOFR Term Loans of such Tranche, it is acknowledged that the existence and terms of the effect thereof may result in such new Incremental Term Loan Commitments evidenced thereby as provided for Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Term SOFR Term Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in Section 9.02(f)this Agreement. Any such deemed amendment may be memorialized in writing All determinations by the Administrative Agent with of the Borrower’s consent (not to be unreasonably withheld) and furnished Adjusted Term SOFR Rate in such circumstances pursuant to the other immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Notwithstanding Subject to compliance with the foregoingother applicable requirements set forth in this Section 2.15, no any new Incremental Term Loan Commitment shall become effective under this Section 2.20 unless may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, same terms); and
(ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application amount of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are does not Other Term Loans, exceed the scheduled amortization payments under Section 2.07(asum of (x) required to be made after the making principal amount of such Incremental the applicable Term Loans shall be ratably increased by effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the aggregate principal amount establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loan Commitments. (a) The Borrower mayshall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.14, but without requiring the consent of any of the Lenders, to request at any time after the Initial Borrowing Date and prior to February 27, 2012, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to the Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent and the Borrower an Incremental Term Loan Commitment Agreement as provided in clause (signed by b) of this Section 1.14, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Eligible Transferee who will become a Responsible Officer Lender) may so provide an Incremental Term Loan Commitment without the consent of the Borrowerany other Lender, (iii) from time to time, request each Tranche of Incremental Term Loan Commitments, and all Incremental Term Loans to be made pursuant thereto, shall be denominated in an Dollars, (iv) the amount of each Tranche of Incremental Term Loan Commitments (whether constituting a new Tranche of Incremental Term Loans or being added to (and thereafter constituting a part of) a then outstanding Tranche of Term Loans) shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of Incremental Term Loans (including Eligible Transferees who will become Lenders) of at least $25,000,000 and in integral multiples of $5,000,000 in excess thereof (or such other integral multiple as may be acceptable to the Administrative Agent), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 1.14 and the aggregate principal amount of all Incremental Term Loans to be made pursuant thereto shall not to exceed $80,000,000 from one or more 100,000,000, (vi) the up-front fees and, if applicable, any unutilized commitment fees and/or other fees, payable to each Incremental Term Lenders (which may include any existing Lender) willing Loan Lender in respect of each Incremental Term Loan Commitment shall be separately agreed to provide by the Borrower, the Administrative Agent and each such Incremental Term Loan Lender, (vii) each Tranche of Incremental Term Loans shall (A) have an Incremental Term Loan Maturity Date of no earlier than the Initial Term Loan Maturity Date, (B) have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in their own discretion. Such notice shall effect for the Initial Term Loans and (C) be subject to the Applicable Margins as are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans, (iviii) the amount proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 7.08(c), (ix) each Incremental Term Loan Commitment Agreement shall specifically designate the Tranche or Tranches of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as the Initial Term Loans or any other then existing Tranche of not less than $10,000,000 and in integral multiples Term Loans) unless the requirements of $1,000,000 in excess thereofSection 1.14(c) are satisfied), (iix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the date other applicable Credit Documents and shall be secured by the Security Documents, and guaranteed under the Subsidiaries Guaranty, on which a pari passu basis with all other Obligations secured by the Security Documents and guaranteed under the Subsidiaries Guaranty, and (xi) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iiiCommitment Agreement as provided in Section 1.01(c) whether and such Incremental Term Loan Commitments are Loans shall thereafter be deemed to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Incremental Term Loans (“Other Term Loans”)under such Tranche for all purposes of this Agreement and the other applicable Credit Documents.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 1.14, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as Term Loan Commitment Agreement, with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment provided therein (and the making of the respective Incremental Term Loans thereunder) to occur on the date set forth in such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior Loan Commitment Agreement, which date in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans event shall be no earlier than the Maturity Datedate on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (iiix) the terms applicable to each series of Other all Incremental Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Loan Commitment Requirements are satisfied, (including the Term Loans made on the Closing Date and y) all other Other Term Loans) conditions set forth in this Section 1.14 shall have been satisfied, and (ivz) all other conditions precedent that may be set forth in such Incremental Term Loan Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the Weighted Average Life to Maturity effectiveness of any Other each Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin Loan Commitment Agreement, and at such time, (which, for purposes of this sentence only, i) Schedule I shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued, at the Applicable Margin relating Borrower’s expense, to such Incremental Term Loan Lender in conformity with the requirements of Section 1.05.
(c) Notwithstanding anything to the contrary contained above in this Section 1.14, the Incremental Term Loans Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., A-0, X-0, X-0, X-0, X-0, X-0, C-1, C-2, C-3, etc.), provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, a then outstanding Tranche of Term Loans so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Maturity Date and shall have the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the new Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not Loans to be unreasonably withheld) and furnished made pursuant to the other parties hereto.
(d) Notwithstanding the foregoing, no such Incremental Term Loan Commitment Agreement shall become effective under this Section 2.20 unless have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Tranche of Term Loans to which such new Incremental Term Loans are being added (iwith the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche of Term Loans to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Term Loan Repayments of the respective Tranche of Term Loans proportionately); and
(iii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 1.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basisbasis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche. The Borrower agrees To the extent the provisions of preceding clause (iii) require that Section 2.16 shall apply to any conversion of LIBO Rate Lenders making new Incremental Term Loans add such Incremental Term Loans to ABR the then outstanding Borrowings of Eurodollar Loans reasonably required by of the Administrative Agent to respective Tranche of Term Loans, it is acknowledged that the effect the foregoing. If any thereof may result in such new Incremental Term Loan is Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to be allocated outstanding Eurodollar Loans of the respective Tranche and which will end on the last day of such Interest Period). In connection therewith, the Borrower hereby agrees to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Eurodollar Loans during an existing Interest Period for a LIBO Rate Loan, then on such basis as may be agreed by the interest rate thereon for such Interest Period Borrower and the other economic consequences thereof shall respective Lender or Lenders as may be as set forth provided in the applicable Incremental Assumption Agreement. In addition, to the extent any respective Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.Loan Commitment Agreement
Appears in 1 contract
Samples: Credit Agreement (Town Sports International Holdings Inc)
Incremental Term Loan Commitments. (a) The Borrower Terex may, from time to time, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to timeAgent, request Incremental Term Loan Commitments, Commitments in an aggregate amount not to exceed $80,000,000 the Incremental Term Loan Amount from one or more Incremental Term Lenders (Lenders, which may include any existing Lender) willing to provide such ; provided that each Incremental Term Loans Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld and shall be given or withheld within three Business Days and, if withheld, the reason therefor shall be specified in their own discretionwriting promptly thereafter). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not less than $10,000,000 and in integral multiples minimum increments of $1,000,000 in excess thereofand a minimum amount of $5,000,000 or equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 calendar days after the “Increased Amount Date”), date of such notice) and (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“"Other Term Loans”").
(b) The Borrower Terex and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the applicable Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Required Lenders, the interest rate spreads in respect of any Other Term Loans shall not exceed by more than 50 basis points the Applicable Percentage for the Term Loans; provided that further that, without the prior written consent of Lenders holding two thirds in interest of the outstanding Loans and unused Commitments of each adversely affected Class, (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, Date and (iiiii) the terms applicable average life to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life average life to Maturity maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, The Administrative Agent shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, promptly notify each Lender as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such each Incremental Term Loan Commitment minus 0.25%.
(c) Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments Commitment evidenced thereby as provided for in Section 9.02(f)thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s Terex's consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 2.27 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 Article IV shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Financial Officer of the BorrowerTerex, (ii) each of the Consolidated Leverage Ratio and the Senior Secured Debt Leverage Ratio as of the last day of the preceding fiscal quarter would be less than the ratios required on such date by at least a 0.25 to 1.00 ratio, as if the Incremental Term Loan Commitments requested were incurred as Incremental Term Loans on such date (and any Indebtedness to be repaid or Permitted Acquisitions to be made with the proceeds thereof were repaid or made on such date), and (iii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary (with sufficient copies for each of the Incremental Term Lenders) closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required reasonably specified by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Samples: Credit Agreement (Terex Corp)
Incremental Term Loan Commitments. (a) The Lead Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Borrower) may at any time and from time to time, time request that one or more Lenders (or one or more Eligible Transferees who will become Lenders) provide Incremental Term Loan CommitmentsCommitments to the Borrowers and, subject to the terms and conditions contained in an aggregate amount not to exceed $80,000,000 from one or more this Agreement and in the relevant Incremental Term Lenders (which may include any existing Lender) willing to provide such Loan Amendment, make Incremental Term Loans in their own discretion. Such notice shall set forth pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by Lead Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Amendment shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate principal amount of any Incremental Term Loans on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Term Loans incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vii) Lead Borrower shall specifically designate, in consultation with the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof)Incremental Term Loans, (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”or other Term Loans), (iiiunless the requirements of Section 2.15(c) whether such Incremental Term Loan Commitments are to satisfied), which designation shall be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of set forth in the applicable Incremental Term Loan Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans; provided that (i) the Other , such Incremental Term Loans shall rank pari passu or junior in right have the same terms as each other Tranche of payment and of security with the Term Loans andas in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to pricingpurpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization and final maturity dateof such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (xa) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity (in each case of the foregoing clauses (a) and (b), excluding for this purpose, interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the requirements of this clause (I)), (II) the same Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Amendment; provided, however, that if the Effective Yield for any such Incremental Term Loans incurred prior the date that is six (6) months after the Closing Date, exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.75% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or (y) such other terms as shall be are otherwise reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date, (iii) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans (including the Term Loans made on the Closing Date and all other Other Term Loans) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment exceeds the Applicable Margin relating to the Term Loans or the Credit-Linked Deposits, as the case may be, immediately prior to the effectiveness of the applicable Incremental Assumption Agreement by more than 0.25%, the Applicable Margin relating to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such Incremental Term Loan Commitment minus 0.25%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (iix) all Incremental Term Loans (and all interest, fees and other than Other Term Loansamounts payable thereon) in incurred by the form Borrowers shall be Obligations of additional Term Loansthe Borrowers under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, when originally madeand guaranteed under each relevant Guaranty, are included in each Borrowing of outstanding on a pari passu basis with all other Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required secured by the Administrative Agent Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to effect the foregoing. If any provide an Incremental Term Loan is Commitment pursuant to an Incremental Term Loan Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Amendment as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to be allocated to an existing Interest Period Incremental Term Loans under such Tranche for a LIBO Rate Loan, then the interest rate thereon for such Interest Period all purposes of this Agreement and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Credit Documents and (xi) all Incremental Term Loans Loan Commitment Requirements are not Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanssatisfied.
Appears in 1 contract
Samples: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Incremental Term Loan Commitments. (a) The So long as no Default or Event of Default is then in existence, each Borrower mayshall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the date which is 12 months prior to the B Term Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan Commitments to such Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by written notice such Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time, request an Incremental Term Loan CommitmentsCommitment Agreement as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be made available to a single Incremental Term Loan Borrower and shall be denominated in U.S. Dollars or, if extended to the Canadian Borrower and it has so elected, Canadian Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least U.S.$25,000,000 (or, CDN $10,000,000, in an the case of Incremental Term Loan Commitments denominated in Canadian Dollars), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 1.15 (taking the U.S. Dollar Equivalent of any Incremental Term Loan Commitment denominated in Canadian Dollars at the time of the borrowing thereof), when combined with the aggregate amount of all Incremental RL Commitments provided pursuant to Section 1.16, shall not to exceed $80,000,000 from 75,000,000; provided that in no event shall the aggregate amount of Canadian Borrower Incremental Term Loans provided pursuant to this Section 1.15 exceed CDN $10,000,000, (vi) the proceeds of all Incremental Term Loans incurred by the U.S. Borrower shall be used for working capital and other general corporate purposes (including, without limitation, to finance one or more Incremental Term Lenders Permitted Acquisitions, to pay fees and expenses in connection therewith and/or to prepay then outstanding Revolving Loans (which may include any existing Lenderwith no corresponding reduction in Revolving Loan Commitments), (vii) willing to provide such the proceeds of all Incremental Term Loans incurred by the Canadian Borrower shall be used to finance one or more Permitted Acquisitions and to pay fees and expenses in their own discretion. Such notice connection therewith, (viii) each Incremental Term Loan Commitment Agreement shall set forth (ix) specifically designate, with the amount approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in an aggregate amount a new Tranche (i.e., not the same as any existing Tranche of not less than $10,000,000 and in integral multiples of $1,000,000 in excess thereofIncremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 1.15(c) are satisfied) and (iiy) the date on which provide that each Lender executing such Incremental Term Loan Commitments Commitment Agreement shall be joined to, and become party as a Lender to, the Intercreditor Agreement without further action required by such Lender (although the Incremental Term Loan Commitment Agreement shall also provide that such Lender shall execute and deliver any separate joinder agreement to the Intercreditor Agreement as may at any time be requested by the Administrative Agent, (ix) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the applicable Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of preceding clauses (vi) and (vii)) and mandatory repayment application provisions (which are requested governed by Section 4.02); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) an Incremental Term Loan Maturity Date of no earlier than the then latest maturing Tranche of outstanding Term Loans and (b) a Weighted Average Life to become effective Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity and (II) the “Increased Amount Date”)interest rates” applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the interest rates applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement, (iiix) whether all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by a given Incremental Term Loan Borrower shall be Obligations of such Incremental Term Loan Commitments are Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by each such Security Agreement and guaranteed under each such Guaranty, (xi) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitment Agreement as provided in Section 1.01(c) and such Loans shall thereafter be deemed to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (xii) all Incremental Term Loans incurred hereunder shall be structured in a manner which shall (A) not cause any withholding Taxes to be paid by, or in connection with payments of interest to, any Lenders who are U.S. Persons (whether or not any Lenders of such Incremental Term Loans are in fact U.S. Persons) and (B) be in compliance with the Canadian “Other Term Loans”)5/25” provisions as evidenced by an opinion of counsel to the Canadian Borrower substantially to the effect of the opinion set forth as Exhibit E-4.
(b) The Borrower At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 1.15, the respective Incremental Term Loan Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Lender Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Term Loan Commitment Agreement and such other documentation as substantially in the Administrative Agent shall reasonably specify to evidence form of Exhibit M (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such the respective Incremental Term Lender. Each Incremental Assumption Loan Commitment Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory been delivered to the Administrative Agent, (iix) all fees required to be paid in connection therewith at the final maturity date time of such effectiveness shall have been paid (including, without limitation, any Other Term Loans shall be no earlier than agreed upon up-front or arrangement fees owing to the Maturity DateAdministrative Agent), (iiiy) the terms applicable to each series of Other Term Loans shall not require any prepayment thereof in excess of the pro rata share of such series relative to all Term Loans Incremental Loan Commitment Requirements are satisfied, and (including the Term Loans made on the Closing Date and z) all other Other conditions set forth in this Section 1.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Commitment Agreement, and at such time, (i) and (iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only, Schedule I shall be deemed modified to include all upfront or similar fees or original issue discount payable reflect the revised Incremental Term Loan Commitments of the affected Lenders and (ii) to all Lenders providing such Term Loans, as applicable) relating to the extent requested by any Incremental Term Loan Commitment exceeds Lender, Incremental Term Notes will be issued at the Applicable Margin relating respective Incremental Term Loan Borrower’s expense, to such Incremental Term Loan Lender, to be in conformity with the requirements of Section 1.05 (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 1.15, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Credit-Linked DepositsIncremental Term Loan Lenders, as the case may be, immediately prior pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the effectiveness existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, X-0, X-0, etc.), provided that, with the consent of the applicable Incremental Assumption Agreement by more than 0.25%Administrative Agent, the Applicable Margin relating parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be adjusted added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be equal to the Applicable Margin relating made pursuant to such Incremental Term Loan Commitment minus 0.25%.Agreement shall have the same Borrower, the same Maturity Date, the same Applicable Margins and the same currency denomination as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(cii) Each the new Incremental Term Loans shall have the same Scheduled Repayment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.respective Tranche proportionately;
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (iiii) on the date of the making of such effectivenessnew Incremental Term Loans, and notwithstanding anything to the conditions contrary set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated 1.09, such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the new Incremental Term Loans are secured by the Collateral ratably with shall be added to (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior toand form part of) the existing Term Loans, (iii) after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, the Consolidated Leverage Ratio would be no greater than the Consolidated Leverage Ratio as of the Closing Date and (iv) both before and after giving effect to such Incremental Term Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no Default or Event of Default shall have occurred and be continuing.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 1.01(c)) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing. If any ; and
(iv) Incremental Term Loan is to Loans may not be allocated added to an existing Tranche of Term Loans borrowed by the Canadian Borrower. To the extent the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of Eurodollar Loans or B/A Discount Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period for a LIBO Rate Loanthat began during an Interest Period, then applicable to outstanding Eurodollar Loans or B/A Discount Rate Loans of such Tranche and which will end on the interest rate thereon for last day of such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption AgreementPeriod). In additionconnection therewith, it is hereby agreed that, to the extent any the Incremental Term Loans are not Other to be so added to the then outstanding Borrowings of Term Loans of such Tranche which are maintained as Eurodollar Loans or B/A Discount Rate Loans, the scheduled amortization payments under Section 2.07(a) required to be Lenders that have made after the making of such Incremental Term Loans shall be ratably increased entitled to receive from the relevant Borrower such amounts, as reasonably determined by the aggregate principal amount of such respective Lenders, to compensate them for funding the new Incremental Term LoansLoans of the respective Tranche during an existing Interest Period (rather than at the beginning of the respective Interest Period based upon rates then applicable thereto). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Samples: Credit Agreement (Bway Corp)
