Incremental Term Loans and Revolving Loan Commitments. (a) At any time prior to the First Amendment Date or after the LIFO Maturity Date, the Borrower may, by written notice to Agent from time to time, request Incremental Term Loan Commitments in an amount not to exceed the Incremental Term Loan Amount from one or more Incremental Term Loan Lenders, each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable to Agent (which acceptance shall not be unreasonably withheld or delayed) and the Borrower. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Term Loan Commitments are commitments to make term loans with terms identical to the terms of the existing Term Loans or commitments to make term loans with a different maturity date than the existing Term Loans or with pricing terms different from the pricing terms of the then existing Term Loans (the term loans with such different pricing terms are referred to herein as the “Other Term Loans” and the related Incremental Term Loan Commitments as the “Other Term Loan Commitments”). 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) and, 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 Agent an Incremental Term Loan Assumption Agreement and such other documentation as Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of each Incremental Term Loan Lender. The terms and provisions of the Incremental Term Loans shall be identical to those of the then existing Term Loans (including, without limitation, the same percentage of amortization over the period of time as the existing Term Loans) except as otherwise set forth herein. If the initial pricing terms on the requested Other Term Loans (as determined by Agent to be equal to the sum of (x) the margin above LIBOR on the requested Other Term Loans (inclusive of any interest rate floors), (y) any OID with respect to the requested Other Term Loans and (z) any upfront fees, but excluding arrangement, structuring and underwriting fees or similar fees not paid to lenders generally paid or payable to any lead arranger or its Affiliates, divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds the pricing terms of any of the then existing Term Loans (as determined by Agent with respect to each such existing Term Loan to be equal to the sum of (x) the Applicable Margin then in effect for such existing Term Loans that is a LIBOR Rate Loan (inclusive of any interest rate floors), (y) any OID with respect to such existing Term Loan and (z) any upfront fees, but excluding arrangement, structuring and underwriting fees or similar fees not paid to lenders generally paid or payable to Antares Capital or any other arranger, divided by the lesser of (A) the average life to maturity of such existing Term Loans and (B) four) by more than 50 basis points, then the pricing terms then in effect for each such existing Term Loan shall automatically be increased to the extent necessary such that the pricing terms (inclusive of any OID) of each such existing Term Loans is equal to the pricing terms of the requested Other Term Loans minus 50 basis points, effective upon the making of the requested Other Term Loans; provided, that, to the extent the pricing terms on the requested Other Term Loans is greater than the pricing terms with respect to such existing Term Loan solely as a result of a higher interest rate floor, then the interest rate margin increase shall be effectuated solely by increasing the interest rate floor on the applicable existing Term Loan, as applicable. The final maturity date of any Incremental Term Loan that is a separate tranche shall be no earlier than the maturity date of the Term Loan A and the Weighted Average Life to Maturity of any such Incremental Term Loan shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loan A. (b) The Borrower may, by written notice to Agent from time to time, request Incremental Revolving Loan Commitments in an amount not to exceed the Incremental Revolving Loan Commitment Amount from one or more Incremental Revolving 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 to Agent (which acceptance shall not be unreasonably withheld or delayed), the Borrower and each L/C Issuer (which acceptance shall not be unreasonably withheld or delayed and which shall be deemed to have been given by such L/C Issuer unless an objection is delivered to Agent within five (5) Business Days after notice of acceptance of such Person by Agent is delivered to such L/C Issuer). Such notice shall set forth (i) the amount of the Incremental Revolving Loan Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $1,000,000 or such lesser amount equal to the remaining Incremental Revolving Loan Commitment Amount) and (ii) the date on which such Incremental Revolving Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice). The Borrower will first seek Incremental Revolving Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, if additional commitments are needed, from additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Revolving Lender shall execute and deliver to Agent an Incremental Revolving Loan Assumption Agreement and such other documentation as Agent shall reasonably specify to evidence the Incremental Revolving Loan Commitment of each such Person. The terms and provisions of such Incremental Revolving Credit Commitments and Revolving Loans made under such Incremental Revolving Credit Commitments shall be identical to those of the existing Revolving Loans. (c) Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and each Incremental Revolving Loan Assumption Agreement. (d) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 1.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 2.2 shall be satisfied and Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, provided, that, if the proceeds thereof are intended to and shall be used to finance a Permitted Acquisition subject to customary “funds certain provisions”, no Default or Event of Default under Section 7.1(a), 7.1(f) or 7.1(g) shall exist and the condition set forth in paragraph (a) of Section 2.2 shall be limited to the Specified Representations and those representations included in the related acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower (or the applicable Credit Party or Subsidiary) has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations, (ii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by Agent and consistent with those delivered on the Restatement Effective Date under Section 2.1, (iii) after giving effect to such Incremental Term Loan Commitment and the Incremental Term Loans or such Incremental Revolving Loan Commitment and the Incremental Revolving Loans, as applicable, to be made thereunder and the application of the proceeds therefrom (assuming, in the case of such Incremental Revolving Loan, that the entire amount of such Incremental Revolving Loan is funded) (x) the Borrower shall be in compliance with the financial covenant set forth in Section 6.2 on a pro forma basis, recomputed for the most recent Fiscal Quarter for which financial statements have been delivered hereunder and (y) the First Lien Net Leverage Ratio and the Leverage Ratio on a pro forma basis, recomputed for the most recent Fiscal Quarter for which financial statements have been delivered hereunder, would be less than or equal to 3.40 to 1.00 and 4.75 to 1.00, respectively, (iv) to the extent reasonably necessary to maintain the continuing priority of the Lien of the Mortgages as security for the Obligations, as determined by Agent in its reasonable discretion (x) the applicable Credit Party to any Mortgages shall have entered into, and delivered to Agent, at the direction and in the reasonable discretion of Agent a mortgage modification in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to Agent, (y) the Borrower shall have caused to be delivered to Agent for the benefit of the Secured Parties an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to Agent, insuring that the priority of the Lien of the Mortgages as security for the Obligations has not changed and confirming and/or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the Mortgages (other than those expressly permitted by Section 5.1) and (z) the Borrower shall have delivered, at the request of Agent, to 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 and (v) any Incremental Term Loan or Incremental Revolving Loan will rank pari passu in right of payment and pari passu with respect to security with the other Loans. Any Incremental Revolving Loans shall be on the same terms (as amended from time to time) (including pricing and maturity date) as, and pursuant to documentation applicable to, the initial Revolving Loans. (e) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan or Incremental Revolving Loan Commitment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of such Incremental Facility and the Loans evidenced thereby, and any joinder agreement or amendment (an “Incremental Amendment”) may without the consent of the other Lenders effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Agent and Borrower, to effectuate the provisions of this Section 1.12, and, for the avoidance of doubt, this Section 1.12 shall supersede any provisions in Section 9.1. From and after such effectiveness, the Loans and Commitments established pursuant to this Section 1.12 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the applicable Collateral Documents. The Credit Parties shall take any actions reasonably required by Agent to ensure and/or demonstrate that the Liens and security interests granted by the applicable Collateral Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Loans and Commitments. (f) Each of the parties hereto hereby agrees that Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBOR Rate Loans that are Term Loans to be converted into a Borrowing of Base Rate Loans that are 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 LIBOR Rate Loans that are Term Loans on a pro rata basis. Any conversion of LIBOR Rate Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 10.4. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Rate 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, the scheduled amortization payments under Section 1.8(a) required to be made after the making of an Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders holding Term Loans were entitled before such recalculation. (g) Each of the parties hereto hereby agrees that Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that, upon the effectiveness of each Incremental Revolving Loan Commitment, (i) Original Revolving Loans made under such Incremental Revolving Credit Commitment are included in each Borrowing of outstanding Original Revolving Loans on a pro rata basis and (ii) the Lender providing each Incremental Revolving Credit Commitment shares ratably in accordance with its Commitment Percentage in the aggregate Original Revolving Loans, Swing Loans and Letter of Credit Obligations then outstanding.
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Samples: Credit Agreement (Spinal Elements Holdings, Inc.), Credit Agreement (Spinal Elements Holdings, Inc.)
Incremental Term Loans and Revolving Loan Commitments. (a) At TheAt any time prior ti me pri or to the First Fi rst Amendment Date or after af ter the LIFO LIF O Maturity Date, the Borrower may, by written notice to Agent from time to time, request Incremental Term Loan Commitments in an amount not to exceed the Incremental Term Loan Amount from one or more Incremental Term Loan Lenders, each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable to Agent (which acceptance shall not be unreasonably withheld or delayed) and the Borrower. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Term Loan Commitments are commitments to make term loans with terms identical to the terms of the existing Term Loans or commitments to make term loans with a different maturity date than the existing Term Loans or with pricing terms different from the pricing terms of the then existing Term Loans (the term loans with such different pricing terms are referred to herein as the “Other Term Loans” and the related Incremental Term Loan Commitments as the “Other Term Loan Commitments”). 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) and, 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 Agent an Incremental Term Loan Assumption Agreement and such other documentation as Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of each Incremental Term Loan Lender. The terms and provisions of the Incremental Term Loans shall be identical to those of the then existing Term Loans (including, without limitation, the same percentage of amortization over the period of time as the existing Term Loans) except as otherwise set forth herein. If the initial pricing terms on the requested Other Term Loans (as determined by Agent to be equal to the sum of (x) the margin above LIBOR on the requested Other Term Loans (inclusive of any interest rate floors), (y) any OID with respect to the requested Other Term Loans and (z) any upfront fees, but excluding arrangement, structuring and underwriting fees or similar fees not paid to lenders generally paid or payable to any lead arranger or its Affiliates, divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds the pricing terms of any of the then existing Term Loans (as determined by Agent with respect to each such existing Term Loan to be equal to the sum of (x) the Applicable Margin then in effect for such existing Term Loans that is a LIBOR Rate Loan (inclusive of any interest rate floors), (y) any OID with respect to such existing Term Loan and (z) any upfront fees, but excluding arrangement, structuring and underwriting fees or similar fees not paid to lenders generally paid or payable to Antares Capital or any other arranger, divided by the lesser of (A) the average life to maturity of such existing Term Loans and (B) four) by more than 50 basis points, then the pricing terms then in effect for each such existing Term Loan shall automatically be increased to the extent necessary such that the pricing terms (inclusive of any OID) of each such existing Term Loans is equal to the pricing terms of the requested Other Term Loans minus 50 basis points, effective upon the making of the requested Other Term Loans; provided, that, to the extent the pricing terms on the requested Other Term Loans is greater than the pricing terms with respect to such existing Term Loan solely as a result of a higher interest rate floor, then the interest rate margin increase shall be effectuated solely by increasing the interest rate floor on the applicable existing Term Loan, as applicable. The final maturity date of any Incremental Term Loan that is a separate tranche shall be no earlier than the maturity date of the Term Loan A and the Weighted Average Life to Maturity of any such Incremental Term Loan shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loan A.
(b) The Borrower may, by written notice to Agent from time to time, request Incremental Revolving Loan Commitments in an amount not to exceed the Incremental Revolving Loan Commitment Amount from one or more Incremental Revolving 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 to Agent (which acceptance shall not be unreasonably withheld or delayed), the Borrower and each L/C Issuer (which acceptance shall not be unreasonably withheld or delayed and which shall be deemed to have been given by such L/C Issuer unless an objection is delivered to Agent within five (5) Business Days after notice of acceptance of such Person by Agent is delivered to such L/C Issuer). Such notice shall set forth (i) the amount of the Incremental Revolving Loan Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $1,000,000 or such lesser amount equal to the remaining Incremental Revolving Loan Commitment Amount) and (ii) the date on which such Incremental Revolving Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice). The Borrower will first seek Incremental Revolving Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, if additional commitments are needed, from additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Revolving Lender shall execute and deliver to Agent an Incremental Revolving Loan Assumption Agreement and such other documentation as Agent shall reasonably specify to evidence the Incremental Revolving Loan Commitment of each such Person. The terms and provisions of such Incremental Revolving Credit Commitments and Revolving Loans made under such Incremental Revolving Credit Commitments shall be identical to those of the existing Revolving Loans.
(c) Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and each Incremental Revolving Loan Assumption Agreement.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 1.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 2.2 shall be satisfied and Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, provided, that, if the proceeds thereof are intended to and shall be used to finance a Permitted Acquisition subject to customary “funds certain provisions”, no Default or Event of Default under Section 7.1(a), 7.1(f) or 7.1(g) shall exist and the condition set forth in paragraph (a) of Section 2.2 shall be limited to the Specified Representations and those representations included in the related acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower (or the applicable Credit Party or Subsidiary) has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations, (ii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by Agent and consistent with those delivered on the Restatement Effective Date under Section 2.1, (iii) after giving effect to such Incremental Term Loan Commitment and the Incremental Term Loans or such Incremental Revolving Loan Commitment and the Incremental Revolving Loans, as applicable, to be made thereunder and the application of the proceeds therefrom (assuming, in the case of such Incremental Revolving Loan, that the entire amount of such Incremental Revolving Loan is funded) (x) the Borrower shall be in compliance with the financial covenant set forth in Section 6.2 on a pro forma basis, recomputed for the most recent Fiscal Quarter for which financial statements have been delivered hereunder and (y) the First Lien Net Leverage Ratio and the Leverage Ratio on a pro forma basis, recomputed for the most recent Fiscal Quarter for which financial statements have been delivered hereunder, would be less than or equal to 3.40 to 1.00 and 4.75 to 1.00, respectively, (iv) to the extent reasonably necessary to maintain the continuing priority of the Lien of the Mortgages as security for the Obligations, as determined by Agent in its reasonable discretion (x) the applicable Credit Party to any Mortgages shall have entered into, and delivered to Agent, at the direction and in the reasonable discretion of Agent a mortgage modification in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to Agent, (y) the Borrower shall have caused to be delivered to Agent for the benefit of the Secured Parties an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to Agent, insuring that the priority of the Lien of the Mortgages as security for the Obligations has not changed and confirming and/or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the Mortgages (other than those expressly permitted by Section 5.1) and (z) the Borrower shall have delivered, at the request of Agent, to 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 and (v) any Incremental Term Loan or Incremental Revolving Loan will rank pari passu in right of payment and pari passu with respect to security with the other Loans. Any Incremental Revolving Loans shall be on the same terms (as amended from time to time) (including pricing and maturity date) as, and pursuant to documentation applicable to, the initial Revolving Loans.
(e) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan or Incremental Revolving Loan Commitment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of such Incremental Facility and the Loans evidenced thereby, and any joinder agreement or amendment (an “Incremental Amendment”) may without the consent of the other Lenders effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Agent and Borrower, to effectuate the provisions of this Section 1.12, and, for the avoidance of doubt, this Section 1.12 shall supersede any provisions in Section 9.1. From and after such effectiveness, the Loans and Commitments established pursuant to this Section 1.12 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the applicable Collateral Documents. The Credit Parties shall take any actions reasonably required by Agent to ensure and/or demonstrate that the Liens and security interests granted by the applicable Collateral Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Loans and Commitments.
(f) Each of the parties hereto hereby agrees that Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBOR Rate Loans that are Term Loans to be converted into a Borrowing of Base Rate Loans that are 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 LIBOR Rate Loans that are Term Loans on a pro rata basis. Any conversion of LIBOR Rate Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 10.4. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Rate 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, the scheduled amortization payments under Section 1.8(a) required to be made after the making of an Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders holding Term Loans were entitled before such recalculation.
(g) Each of the parties hereto hereby agrees that Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that, upon the effectiveness of each Incremental Revolving Loan Commitment, (i) Original Or iginal Revolving Loans made under such Incremental Revolving Credit Commitment are included in each Borrowing of outstanding Original Orig inal Revolving Loans on a pro rata basis and (ii) the Lender providing each Incremental Revolving Credit Commitment shares ratably in accordance with its Commitment Percentage in the aggregate Original Revolving Loans, Swing Loans and Letter of Credit Obligations then outstanding.
Appears in 1 contract
Incremental Term Loans and Revolving Loan Commitments. (a) At any time prior to the First Amendment Date or after the LIFO Maturity Date, the The Borrower may, by written notice to Agent from time to time, request Incremental Term Loan Commitments in an amount not to exceed the Incremental Term Loan Amount from one or more Incremental Term Loan Lenders, each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable to Agent (which acceptance shall not be unreasonably withheld or delayed) and the Borrower. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Term Loan Commitments are commitments to make term loans with terms identical to the terms of the existing Term Loans or commitments to make term loans with a different maturity date than the existing Term Loans or with pricing terms different from the pricing terms of the then existing Term Loans (the term loans with such different pricing terms are referred to herein as the “Other Term Loans” and the related Incremental Term Loan Commitments as the “Other Term Loan Commitments”). 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) and, 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 Agent an Incremental Term Loan Assumption Agreement and such other documentation as Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of each Incremental Term Loan Lender. The terms and provisions of the Incremental Term Loans shall be identical to those of the then existing Term Loans (including, without limitation, the same percentage of amortization over the period of time as the existing Term Loans) except as otherwise set forth herein. If the initial pricing terms on the requested Other Term Loans (as determined by Agent to be equal to the sum of (x) the margin above LIBOR on the requested Other Term Loans (inclusive of any interest rate floors), (y) any OID with respect to the requested Other Term Loans and (z) any upfront fees, but excluding arrangement, structuring and underwriting fees or similar fees not paid to lenders generally paid or payable to any lead arranger or its Affiliates, divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds the pricing terms of any of the then existing Term Loans (as determined by Agent with respect to each such existing Term Loan to be equal to the sum of (x) the Applicable Margin then in effect for such existing Term Loans that is a LIBOR Rate Loan (inclusive of any interest rate floors), (y) any OID with respect to such existing Term Loan and (z) any upfront fees, but excluding arrangement, structuring and underwriting fees or similar fees not paid to lenders generally paid or payable to Antares Capital or any other arranger, divided by the lesser of (A) the average life to maturity of such existing Term Loans and (B) four) by more than 50 basis points, then the pricing terms then in effect for each such existing Term Loan shall automatically be increased to the extent necessary such that the pricing terms (inclusive of any OID) of each such existing Term Loans is equal to the pricing terms of the requested Other Term Loans minus 50 basis points, effective upon the making of the requested Other Term Loans; provided, that, to the extent the pricing terms on the requested Other Term Loans is greater than the pricing terms with respect to such existing Term Loan solely as a result of a higher interest rate floor, then the interest rate margin increase shall be effectuated solely by increasing the interest rate floor on the applicable existing Term Loan, as applicable. The final maturity date of any Incremental Term Loan that is a separate tranche shall be no earlier than the maturity date of the Term Loan A and the Weighted Average Life to Maturity of any such Incremental Term Loan shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loan A.
(b) The Borrower may, by written notice to Agent from time to time, request Incremental Revolving Loan Commitments in an amount not to exceed the Incremental Revolving Loan Commitment Amount from one or more Incremental Revolving 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 to Agent (which acceptance shall not be unreasonably withheld or delayed), the Borrower and each L/C Issuer (which acceptance shall not be unreasonably withheld or delayed and which shall be deemed to have been given by such L/C Issuer unless an objection is delivered to Agent within five (5) Business Days after notice of acceptance of such Person by Agent is delivered to such L/C Issuer). Such notice shall set forth (i) the amount of the Incremental Revolving Loan Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $1,000,000 or such lesser amount equal to the remaining Incremental Revolving Loan Commitment Amount) and (ii) the date on which such Incremental Revolving Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice). The Borrower will first seek Incremental Revolving Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, if additional commitments are needed, from additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Revolving Lender shall execute and deliver to Agent an Incremental Revolving Loan Assumption Agreement and such other documentation as Agent shall reasonably specify to evidence the Incremental Revolving Loan Commitment of each such Person. The terms and provisions of such Incremental Revolving Credit Commitments and Revolving Loans made under such Incremental Revolving Credit Commitments shall be identical to those of the existing Revolving Loans.
(c) Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and each Incremental Revolving Loan Assumption Agreement.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 1.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 2.2 shall be satisfied and Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, provided, that, if the proceeds thereof are intended to and shall be used to finance a Permitted Acquisition subject to customary “funds certain provisions”, no Default or Event of Default under Section 7.1(a), 7.1(f) or 7.1(g) shall exist and the condition set forth in paragraph (a) of Section 2.2 shall be limited to the Specified Representations and those representations included in the related acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower (or the applicable Credit Party or Subsidiary) has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations, (ii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by Agent and consistent with those delivered on the Restatement Effective Date under Section 2.1, (iii) after giving effect to such Incremental Term Loan Commitment and the Incremental Term Loans or such Incremental Revolving Loan Commitment and the Incremental Revolving Loans, as applicable, to be made thereunder and the application of the proceeds therefrom (assuming, in the case of such Incremental Revolving Loan, that the entire amount of such Incremental Revolving Loan is funded) (x) the Borrower shall be in compliance with the financial covenant set forth in Section 6.2 on a pro forma basis, recomputed for the most recent Fiscal Quarter for which financial statements have been delivered hereunder and (y) the First Lien Net Leverage Ratio and the Leverage Ratio on a pro forma basis, recomputed for the most recent Fiscal Quarter for which financial statements have been delivered hereunder, would be less than or equal to 3.40 to 1.00 and 4.75 to 1.00, respectively, (iv) to the extent reasonably necessary to maintain the continuing priority of the Lien of the Mortgages as security for the Obligations, as determined by Agent in its reasonable discretion (x) the applicable Credit Party to any Mortgages shall have entered into, and delivered to Agent, at the direction and in the reasonable discretion of Agent a mortgage modification in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to Agent, (y) the Borrower shall have caused to be delivered to Agent for the benefit of the Secured Parties an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to Agent, insuring that the priority of the Lien of the Mortgages as security for the Obligations has not changed and confirming and/or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the Mortgages (other than those expressly permitted by Section 5.1) and (z) the Borrower shall have delivered, at the request of Agent, to 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 and (v) any Incremental Term Loan or Incremental Revolving Loan will rank pari passu in right of payment and pari passu with respect to security with the other Loans. Any Incremental Revolving Loans shall be on the same terms (as amended from time to time) (including pricing and maturity date) as, and pursuant to documentation applicable to, the initial Revolving Loans.
(e) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan or Incremental Revolving Loan Commitment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of such Incremental Facility and the Loans evidenced thereby, and any joinder agreement or amendment (an “Incremental Amendment”) may without the consent of the other Lenders effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Agent and Borrower, to effectuate the provisions of this Section 1.12, and, for the avoidance of doubt, this Section 1.12 shall supersede any provisions in Section 9.1. From and after such effectiveness, the Loans and Commitments established pursuant to this Section 1.12 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the applicable Collateral Documents. The Credit Parties shall take any actions reasonably required by Agent to ensure and/or demonstrate that the Liens and security interests granted by the applicable Collateral Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Loans and Commitments.
(f) Each of the parties hereto hereby agrees that Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBOR Rate Loans that are Term Loans to be converted into a Borrowing of Base Rate Loans that are 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 LIBOR Rate Loans that are Term Loans on a pro rata basis. Any conversion of LIBOR Rate Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 10.4. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Rate 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, the scheduled amortization payments under Section 1.8(a) required to be made after the making of an Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders holding Term Loans were entitled before such recalculation.
(g) Each of the parties hereto hereby agrees that Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that, upon the effectiveness of each Incremental Revolving Loan Commitment, (i) Original Revolving Loans made under such Incremental Revolving Credit Commitment are included in each Borrowing of outstanding Original Revolving Loans on a pro rata basis and (ii) the Lender providing each Incremental Revolving Credit Commitment shares ratably in accordance with its Commitment Percentage in the aggregate Original Revolving Loans, Swing Loans and Letter of Credit Obligations then outstanding.
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