Incremental Credit Extensions. (a) Parent may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans (the “Incremental Term Loans”) or (b) one or more increases in the amount of the Revolving Credit Commitments of any Facility (each such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 2 contracts

Sources: Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (OUTFRONT Media Inc.)

Incremental Credit Extensions. (a) ~~Parent~~ The Borrower may, at any ~~time or from time to time after the Closing Date~~time, ~~by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a)~~ on one or more ~~additional~~ occasions deliver a written request to Administrative Agent to (i) add one or more new tranches of term facilities hereunder and/or increase the principal amount of the Term Loans or any Additional Term Loans by requesting new term loans commitments to be added to such Loans (~~the~~ any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) or in an aggregate principal amount not to exceed (bx) ~~one or more increases in~~ the ~~amount~~ greater of (1) $100,000,000 and (2) 85% of Consolidated Adjusted EBITDA of the ~~Revolving Credit Commitments of any Facility (each such increase~~Borrower, calculated on a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma ~~Compliance with Section 7.09 for~~ Basis as of the last day of the most recently ended Test Period for which financial statements are available (the “Fixed Dollar Incremental Amount”), less (i) the aggregate principal amount of all Incremental Equivalent Debt incurred and/or issued in reliance on the Fixed Dollar Incremental Amount and (ii) the aggregate principal amount of “Incremental Loans”, “Incremental Commitments” and “Incremental Equivalent Debt” (each as defined in the First Lien Credit Agreement or any equivalent term under any documentation governing any First Lien Facility), in each case, incurred and/or issued in reliance on the Fixed Dollar Incremental Amount (as defined in the First Lien Credit Agreement (or equivalent provision under any other documentation governing any First Lien Facility)), plus (y) the amount of any voluntary prepayments of the Term Loans, Incremental Equivalent Debt and any other Indebtedness secured by Liens on a pari passu basis with or senior to the Liens on the Collateral securing the Loans, voluntary prepayments or repayments of the Term Loans (including any First Lien Incremental Term Facility, each as defined in the First Lien Credit Agreement), Incremental Equivalent Debt (as defined in the First Lien Credit Agreement), Revolving Credit Commitments (as defined in the First Lien Credit Agreement), Incremental Revolving Facilities (as defined in the First Lien Credit Agreement) and any other Indebtedness secured by Liens on a pari passu basis with or senior to the Liens on the Collateral securing the Loans, the amount paid in Cash in respect of any reduction in the outstanding amount of any Term Loan (other than any Incremental Term Loan incurred in reliance on clause (z) below) resulting from any assignment of such Term Loan to (and/or purchase of such Term Loan by) the Borrower and/or any of their respective Restricted Subsidiaries, and/or application of any “yank-a-bank” provisions, in each case effected after the Closing Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of long-term Indebtedness (other than Revolving Loans (as defined in the First Lien Credit Agreement)) shall not increase the calculation of the amount under this clause (y)) plus (z) an unlimited amount so long as, in the case of this clause (z), after giving effect to such Incremental Term Facility, (1) in the case of Incremental Term Facilities secured by a Lien on the Collateral that is on a pari passu or on a junior lien basis with the Liens securing the Secured Obligations, the Senior Secured Leverage Ratio calculated on a Pro Forma Basis (but without giving effect to any Incremental Term Facility or Incremental Equivalent Debt incurred substantially concurrently therewith in reliance on the Fixed Dollar Incremental Amount) as of the last day of the most recently ended Test Period for which financial statements are available, would not exceed 6.00:1.00 (or, to the extent such Incremental Term Facility is incurred in connection with any Permitted Acquisition or similar investment not prohibited by this Agreement, the greater of 6.00:1.00 (calculated on a Pro Forma Basis) and the Senior Secured Leverage Ratio immediately prior to such transaction) and (2) in the case of any unsecured Incremental Term Facilities, either (I) the Total Leverage Ratio calculated on a Pro Forma Basis (but without giving effect to any Incremental Term Facility or Incremental Equivalent Debt incurred substantially concurrently therewith in reliance on the Fixed Dollar Incremental Amount) as of the last day of the most recently ended Test Period for which financial statements are available, would not exceed 6.25:1.00 (or, to the extent such Incremental Term Facility is incurred in connection with any Permitted Acquisition or similar investment not prohibited by this Agreement, the greater of 6.25:1.00 (calculated on a Pro Forma Basis) and the Total Leverage Ratio immediately prior to such transaction) or (II) the Interest Coverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements are available, would be at least 1.75:1.00 (or, to the extent such Incremental Term Facility is incurred in connection with any Permitted Acquisition or similar investment not prohibited by this Agreement, the lesser of 1.75:1.00 and the Interest Coverage Ratio immediately prior to such transaction) (amounts incurred under this clause (z), the “Incremental Incurrence Amount”) (it being understood that for purposes of clause (z) of this Section 2.21(a), the Cash proceeds of the relevant Incremental Term Facility or Incremental Equivalent Debt shall be excluded in calculating the Unrestricted Cash Amount used in determining the Senior Secured Leverage Ratio or Total Leverage Ratio, as applicable) (the amounts described in clauses (x) (y) and (z) above, the “Incremental Cap”), (it being understood that, at the election of the Borrower, (I) the Borrower shall be deemed to have ~~been delivered pursuant~~ used amounts under clause (z) (to ~~Section 6.01. Each tranche~~ the extent compliant therewith) prior to utilization of amounts under clause (x) or (y), (II) Loans may be incurred simultaneously under clauses (x), (y) and (z), and proceeds from any such incurrence may be utilized in a single transaction, at the election of the Borrower, by first calculating the incurrence under clause (z) above and then calculating the incurrence under clause (x) above, (III) any portion of any Incremental Term Facility incurred in reliance on clause (x) and/or (y) may be reclassified, as the Borrower may elect from time to time, as incurred under clause (z) to the extent permitted thereunder at such time on a Pro Forma Basis) specifying the amount so requested and (IV) the Borrower may incur an Incremental Term Facility without giving effect to any Revolving Loans (as defined in the First Lien Credit Agreement) proposed to be incurred substantially simultaneously or contemporaneously with such Incremental Term Facility; provided that: (i) each such request shall be in an amount not less than with respect to an Incremental Term Facility, $5,000,000, (ii) except as separately agreed from time to time between the Borrower and any Lender, no Lender shall be obligated to provide all or any portion of any Incremental Commitment and the determination to provide such commitment shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Term Facility or Incremental Term Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) [reserved], (v) the interest rate and amortization schedule (subject to clause (vi) below) applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that, in the case of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the or Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that ~~required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank~~ are pari passu ~~or junior~~ in right of payment and of with respect to security with the ~~Revolving Credit~~ Term Loans incurred on or prior to the Closing Date and (a) are incurred prior to the ~~Term Loans~~two year anniversary of the Closing Date under the Incremental Incurrence Amount, (b) ~~shall~~ the maturity of such Incremental Term Loans is prior to the date two years after the Term Loan Maturity Date and (c) are not ~~mature earlier~~ incurred in connection with a Permitted Acquisition or other investment permitted pursuant to this Agreement, as applicable, such interest rate will not be more than 0.50% higher than the ~~Maturity~~ corresponding interest rate applicable to the Term Loans incurred on or prior to the Closing Date unless the interest rate margin with respect to the existing Term Loans incurred prior to the Closing Date is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50% (this proviso, the “MFN Protection”); provided, further, that in determining the applicable interest rate: (w) original issue discount or upfront fees paid by the Borrower in connection with the Term Loans incurred on or prior to the Closing Date, as applicable, or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity), shall be included as interest, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or incurred on the Closing Date or to one or more arrangers (or their Affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any “LIBOR” interest rate floor greater than that applicable to the existing Term Loans, and such floor is applicable to the Term Loans incurred on the Closing Date on the date of determination, such excess amount (cand solely such excess amount) shall be equated to interest margin for determining the increase; provided, however, that MFN Protection shall not ~~have a shorter~~ apply to the incurrence of up to $100,000,000 of Incremental Term Facilities as elected by the Borrower (the “MFN Trigger Amount”) (the terms of the clause (v), the “MFN Provisions”), (vi) subject to the proviso set forth in clause (vii), the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Term Loan Maturity Date, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Term ~~Loans~~Loan funded on the Closing Date; provided that, the maturity and weighted average life limitations of clause (dvi) and this clause (vii) shall not apply to any customary bridge facility so long as the long-term debt into which any such customary bridge facility is to be ~~entitled~~ converted satisfies such limitations, (viii) any Incremental Term Facility may rank pari passu or junior in right of payment and pari passu or junior with respect to ~~share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis~~ security with the Term ~~Loans~~Loans incurred on the Closing Date, as applicable, or may be unsecured (and ~~(e) shall bear interest at rates and be entitled~~ to ~~upfront fees as~~ the extent pari passu or subordinated in right of payment or security, shall be ~~determined by Parent~~ subject to an Acceptable Intercreditor Agreement or other intercreditor arrangements reasonably satisfactory to the Administrative Agent and the ~~applicable new Lenders~~Borrower); ~~provided~~provided that, ~~however,~~ to the extent that ~~if the All-In Yield for~~ any such Incremental Term ~~Loans that are incurred under this Section 2.14 on a date that~~ Facility is ~~prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield~~ junior with respect to ~~the~~ security or unsecured, such Incremental Term Facility shall be documented under separate facility documentation, (ix) any Incremental Term Facility that is pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans ~~by more than 50 basis points~~(and all other then-existing Additional Term Loans requiring ratable prepayment), ~~then~~ unless the ~~interest rate margins applicable~~ Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments, (x) except to the extent provided in Section 1.09(a) if the proceeds of any Incremental Term ~~Loans~~ Facility are being used to finance a Limited Condition Transaction, no Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Term Facility, (xi) [reserved], (xii) [reserved], (xiii) no Incremental Term Facility may be secured by assets other than the Collateral and there shall be ~~increased so that such excess shall be only 50 basis points. The~~ no borrowers or guarantors in respect of any Incremental Term ~~Loans~~ Facility that are not the Borrower or Loan Guarantors, and (xiv) such Incremental Term Facilities shall ~~otherwise~~ be on terms and pursuant to documentation to be ~~determined by Parent~~determined; provided that, to the extent such terms and documentation are not consistent with the ~~Term Loans~~ this Agreement (except to the extent permitted by in clauses (ai) through (exii) above), ~~they~~ the terms and conditions of any such Incremental Term Facility shall be ~~reasonably satisfactory to~~ as agreed between the ~~Administrative Agent (it being understood to~~ Borrower and the ~~extent that~~ lenders providing any ~~financial maintenance covenant is added for the benefit of any~~ such Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses Facility. (b) ~~and (c) above, the amortization schedule (if any) applicable to the~~ Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans Commitments may be ~~made, and Revolving Commitment Increases may be provided,~~ provided by any existing ~~Lender~~ Lender, or by any other ~~bank or other financial institution~~ lender (any such other ~~bank or other financial institution~~ lender being called an “Additional Lender”); ~~provided,~~ provided that the Administrative ~~Agent, each Swing Line Lender and each L/C Issuer~~ Agent shall have consented (such consent not to be unreasonably withheld) to such ~~Lender’s or~~ Additional Lender’s ~~making~~ providing such Incremental ~~Term Loans or providing such Revolving Commitment Increases~~ Commitments if such consent would be required under Section ~~10.06(b~~9.05(b) for an assignment of Loans ~~or Revolving Credit Commitments~~to such Additional Lender; provided, ~~as applicable~~further, that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional ~~Lender.~~ Lender providing a portion of the Incremental Commitments ~~in respect of Incremental Term Loans~~ shall execute and ~~Revolving Commitment Increases shall become Commitments~~ deliver to the Administrative Agent and the Borrower all such documentation (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to including an amendment ~~(an “Incremental Amendment”)~~ to this Agreement ~~and, as appropriate, the~~ or any other Loan ~~Documents, executed~~ Document) as may be reasonably required by the ~~applicable Borrower, each Lender agreeing~~ Administrative Agent to ~~provide~~ evidence and effectuate such ~~Commitment, if any~~Incremental Commitments. On the effective date of such Incremental Commitments, each Additional ~~Lender, if any, and~~ Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) [Reserved]. (e) [Reserved]. (f) [Reserved]. (g) [reserved]. (h) [reserved]. (i) The Lenders hereby irrevocably authorize the Administrative ~~Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such~~ Agent to enter into amendments to this Agreement and the other Loan Documents with the Loan Parties as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended pursuant to this Section 2.21 and such technical amendments as may be necessary or ~~appropriate,~~ appropriate in the reasonable opinion of the Administrative Agent and ~~Parent to effect~~ the ~~provisions~~ Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees2.21. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (gj) This Section ~~2.14~~ 2.21 shall supersede any provisions in Section ~~2.13~~ 2.17 or ~~10.01~~ 9.02 to the contrary. (k) The proceeds of any Incremental Term Facility may be used by the Borrower and its subsidiaries for working capital and other general corporate purposes, including the financing of any Permitted Acquisition and other investments, and any other use not prohibited by this Agreement.

Appears in 2 contracts

Sources: Second Lien Credit Agreement (Post Holdings, Inc.), Second Lien Credit Agreement

Incremental Credit Extensions. (a) ~~Parent may,~~ The U.S. Borrower may at any time or from time to time after the ~~Closing~~ Syndication Date, by notice to the Administrative ~~Agent~~ Agent, request in an aggregate amount not to exceed the Available Incremental Amount (~~whereupon the Administrative Agent shall promptly deliver a copy~~ such amount not to ~~each~~ include loans which constitute Permitted Refinancing Indebtedness of the ~~Lenders), request~~ Loans hereunder) (ax) one or more additional tranches ~~of term loans~~ or additions to the A Term Loans or B Term Loans (the “Incremental Term Loans”) or (by) one or more additional tranches or increases in the amount of the Revolving ~~Credit~~ Loan Commitments on similar terms to the terms of the Revolving Loan Commitments and any ~~Facility~~ other Extended Revolving Commitments (unless otherwise consented to by the Administrative Agent (except for (x) the tenor of such additional tranches or increases (which shall have a scheduled expiration date no earlier than the 2017 Revolving Loan Maturity Date) and (y) the applicable interest rates, interest margins, rate floors, premiums, funding discounts and fees payable (other the Commitment Commission and any similar fee) with respect to such additional tranches or increases (in each ~~such increase, a~~ case which shall be as specified in the applicable Incremental Amendment) (the “Revolving Commitment Increase”, and, together with the Incremental Term Loans, collectively, the “Incremental Loans”); ~~provided~~provided that notwithstanding anything to the contrary contained in this Section 2.14(a), the Borrower shall always have the right to add additional tranches or increase the Revolving Loan Commitments so that after giving effect thereto the Total Revolving Loan Commitment is $375,000,000 (subject to (x) satisfaction of the requirements of the immediately succeeding proviso (y) treating any Permitted Refinancing Indebtedness of Revolving Loan Commitments as Revolving Loan Commitments for purposes hereof); and provided further that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to ~~below~~ below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto~~), (i~~) no Default or Event of Default shall ~~exist and~~ exist, (ii) ~~Parent shall be in Pro Forma Compliance with Section 7.09 for~~ both at the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit time of any ~~Incremental Term Loan or Revolving Commitment Increase, no consent shall be required from~~ such request and upon 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment ~~shall be subject~~ referred to ~~such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds~~ below, all of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties ~~contained~~ of each Credit Party set forth in ~~Article V~~ Section 8 and ~~the~~ in each other ~~Loan Documents~~ Credit Document shall be true and correct in all material respects ~~(or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and~~ as of ~~the effective date of~~ such ~~Incremental Amendment,~~ time (except to the extent ~~that~~ such representations and warranties ~~specifically refer~~ expressly relate to an earlier date, in which case they shall be true and correct in all material respects ~~(or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects)~~ as of such earlier date), (iii) all Incremental 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 Guaranty, on a pari passu basis with all other Obligations of the U.S. Borrower under this Agreement secured by the Security Documents and guaranteed under the Guaranty, (iv) the U.S. Borrower shall be in compliance with the financial covenant set forth in Section 10.08 (whether or not then in effect) determined on a Pro Forma Basis as of the date of the most recently ended Test Period (or, if no Test Period cited in Section 10.08 has passed, the covenant in Section 10.08 for the first Test Period cited in such Sections shall be satisfied as of the last four quarters ended), in each case, as if such Incremental Term Loans or Loans pursuant to the Revolving Loan Commitment Increase, as applicable, had been outstanding on the last day of such fiscal quarter of the U.S. Borrower for testing compliance therewith and (v) at no time shall there be more than five separate tranches of Revolving Loan Commitments. (gb) ~~This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01~~ (i) Incremental Term Loans that are added to the ~~contrary~~existing tranche of A Term Loans or B Term Loans, as applicable, shall have identical terms to such existing tranche of Term Loans. All other Incremental Term Loans shall rank pari passu in right of payment and of security with the Loans; provided, however, that (i) the interest rate applicable to the Incremental Term Loans may differ from that applicable to the existing Loans, but if the “effective yield” applicable to a given tranche of Incremental Term Loans (which, for such purposes only, shall be deemed to take account of any interest rate benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (x) the weighted average life of such loans and (y) four years) payable to all Lenders providing such Incremental Term Loans and the effect of any LIBO Rate or Base Rate floors, in each case as determined by the Administrative Agent, 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) determined as of the initial funding date for such Incremental Term Loans exceeds the “effective yield” then applicable to any Loans or any other tranche of Incremental Term Loans (determined on the same basis as provided in the preceding parenthetical) by more than 0.50% (the amount of such excess being the “Yield Differential”), the Applicable Margin for such existing Loans subject to a Yield Differential shall automatically be increased by the Yield Differential effective upon the making of the applicable Incremental Term Loans, (ii) the final stated maturity date for a given tranche of Incremental Term Loans may be later (but not sooner) than the latest of the A Term Loan Maturity Date, B Term Loan Maturity Date and 2017 Revolving Loan Maturity Date, (iii) the amortization requirements for a given tranche of Incremental Term Loans may differ, so long as the average weighted life to maturity of such Incremental Term Loans is no shorter than the average weighted life to maturity applicable to the then outstanding B Term Loans, and (iv) the other terms of a given tranche of Incremental Term Loans may differ if reasonably satisfactory to the Administrative Agent.

Appears in 2 contracts

Sources: Credit Agreement (Walter Energy, Inc.), Credit Agreement (Walter Energy, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of Term Loans or add one or more additional tranches of term loans (any such Term Loans or additional tranche of term loans, the “Incremental Term Loans”) ~~or (b)~~ and/or one or more increases in the ~~amount of the~~ Revolving Credit Commitments of any ~~Facility~~ Class (~~each such increase,~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”)~~; provided~~. Notwithstanding anything to contrary herein, ~~that upon~~ the ~~effectiveness~~ aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) the Unrestricted Incremental Amount, plus (ii) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, after giving Pro Forma Effect thereto and after giving Pro Forma Effect to any Permitted Acquisition and any other Specified Transaction consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Facilities), (A) in the case of any Incremental ~~Amendment referred to below and at~~ Facility or Permitted Alternative Incremental Facilities Debt secured by Liens on Collateral that are pari passu with the ~~time that any such Incremental~~ Liens securing the Initial Term ~~Loan is made (and after giving effect thereto)~~Loans, ~~(i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09~~ the First Lien Senior Secured Leverage Ratio for the most recently ended Test Period shall not exceed (1) 3.20:1.00 or (2) if the proceeds of such Incremental Facility or Permitted Alternative Incremental Facilities Debt are used in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the greater of (x) 3.20:1.00 and (y) the First Lien Senior Secured Leverage Ratio immediately prior to the incurrence of such Incremental Facility or Permitted Alternative Incremental Facilities Debt and related transactions, (B) in the case of any Incremental Facility or Permitted Alternative Incremental Facilities Debt secured by Liens on Collateral that are junior to the Liens securing the Initial Term Loans, the Total Senior Secured Leverage Ratio for ~~which financial statements have been delivered pursuant~~ the most recently ended Test Period shall not exceed (1) 4.00:1.00 or (2) if the proceeds of such Incremental Facility or Permitted Alternative Incremental Facilities Debt are used in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the greater of (x) 4.00 to ~~Section 6.01. Each tranche~~ 1.00 and (y) the Total Senior Secured Leverage Ratio immediately prior to the incurrence of such Indebtedness and any related transactions and (C) in the case of any Incremental Facility or Permitted Alternative Incremental Facilities Debt that is unsecured or is secured solely by assets that do not constitute Collateral, either (I) the Total Leverage Ratio for the most recently ended Test Period shall not exceed (x) 4.25:1.00 or (y) if the proceeds of such Incremental Facility or Permitted Alternative Incremental Facilities Debt are used in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the greater of (1) 4.25 to 1.00 or (2) the Total Leverage Ratio immediately prior to the incurrence of such Indebtedness and any related transactions or (II) the Interest Coverage Ratio is not less than either (x) 2.00 to 1.00 or (y) if the proceeds of such Incremental Facility or Permitted Alternative Incremental Facilities Debt are used in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the lesser of (1) 2.00 to 1.00 or (2) the Interest Coverage Ratio immediately prior to the incurrence of such Indebtedness and any related transactions; provided, however, that notwithstanding the foregoing the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, in each case, incurred under this clause (C) that is secured by assets that do not constitute Collateral, shall not exceed $25,000,000 (it being understood that Incremental Facilities may be incurred pursuant to this clause (ii) prior to utilization of the Unrestricted Incremental Amount and in all respects subject to Section 1.09(b)) and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving ~~Commitment Increase~~ Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (ii), the “Incremental Incurrence Test” and, together with the Unrestricted Incremental Amount, the “Maximum Incremental Facilities Amount”). Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $~~50 million (provided~~5,000,000 in case of Incremental Term Loans or $1,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amountabove. (b) Any ~~Revolving Commitment Increase~~ Incremental Term Loans (other than Refinancing Term Loans) (i) shall not be on guaranteed by any Subsidiary that is not a Loan Party under this Agreement and, except to the ~~same terms and~~ extent permitted pursuant to the ~~same documentation applicable~~ proviso in clause (a)(ii)(C) above, shall not be secured by any assets of the Borrower or any of its Subsidiaries that is not Collateral, and such Incremental Term Loans may, at the discretion of the Borrower, (A) rank pari passu in right of payment with the Initial Term Facility, (B) be subordinated in right of payment to the ~~Revolving Credit~~ Initial Term Facility, (C) be secured on a pari passu basis with the Initial Term Facility, (D) be secured on a junior basis to the Initial Term Facility or (~~including~~ E) be unsecured; provided that if subordinated or secured on a junior basis (and not incurred under this Agreement), any intercreditor or lien subordination arrangements must be reasonably satisfactory to the ~~maturity date~~ Administrative Agent, which in ~~respect thereof but excluding up-front commitment~~ the case of clauses (C) and (D) above, shall be substantially similar to the intercreditor and lien subordination arrangements set forth in the applicable Acceptable Intercreditor Agreement, (ii) may provide for the ability to participate on a pro rata basis or ~~similar fees~~less than pro rata basis in any voluntary or mandatory prepayments of the Initial Term Loans, (iii) shall have interest rate, upfront fees and original issue discount and (subject to clauses (iv) and (v)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that if the Effective Yield of any Incremental Term Loans incurred on or prior to the MFN Sunset Date exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to the Initial Term Loans shall be adjusted such that the Effective Yield of the Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum (the foregoing, collectively, the “MFN Adjustment”); provided, ~~the Applicable Rate~~ further, that any increase in Effective Yield with respect to the ~~Revolving Credit Facility may be increased if necessary~~ Initial Term Loans due to ~~be consistent with that required by~~ the ~~lenders providing the Revolving Commitment Increase. The~~ application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the Initial Term Loans ~~(a)~~ shall ~~rank pari passu or junior~~ be effected solely through an increase in ~~right of payment and of security with~~ the ~~Revolving Credit Loans and~~ interest rate floor applicable to the Initial Term Loans), (biv) other than in the case of any Customary Bridge Loans, any Incremental Term Loan shall not ~~mature~~ have a final maturity date earlier than the Maturity Date ~~with respect~~ applicable to the Initial Term Loans, (cv) other than in the case of any Customary Bridge Loans, any Incremental Term Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Initial Term Loans, (dvi) ~~shall be entitled~~ [reserved], (vii) subject to ~~share~~ clause (iii) above, any fees payable in ~~mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis~~ connection with ~~the~~ such Incremental Term ~~Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall~~ Loans will be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders; provided, however, that if the All-In Yield for~~ arrangers and/or lenders providing such Incremental Term Loans ~~that are incurred under~~ and (viii) except to the extent otherwise permitted by this Section ~~2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date~~2.14, shall ~~exceed~~ have terms and conditions determined by the ~~All-In Yield with respect to~~ Borrower and the ~~Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that~~ arrangers and/or lenders providing such ~~excess shall be only 50 basis points. The~~ Incremental Term ~~Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent~~Loans; provided that, to the extent such terms and ~~documentation~~ conditions are not ~~consistent with~~ the same as the Initial Term Loans in any material respect (~~except to~~ as determined in good faith by the ~~extent permitted by clauses (a) through (e) above~~Borrower), ~~they~~ such terms shall be reasonably satisfactory to the Administrative ~~Agent (~~Agent, it being understood ~~to the extent~~ that ~~any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase,~~ no consent shall be required from the Administrative Agent ~~or any Lender~~ for terms and conditions that (A) are more favorable to the Lenders under the Initial Term Facility than the Initial Term Loans, to the extent that ~~such financial maintenance covenant is also~~ they are added for the benefit of the Term Lenders hereunder (which such amendments may be effected without consent of the Lenders under the Initial Term Loans and including, for the avoidance of doubt, at the option of the Borrower, any ~~corresponding existing~~ increase in the applicable interest rate margin related to the Initial Term ~~Loans) and subject~~ Loans to ~~clauses (b) and (c) above, the amortization schedule (if any)~~ bring such applicable to interest rate margin in line with the Incremental Term Loans ~~shall be determined by Parent and~~ to achieve fungibility with the ~~lenders thereof~~Initial Term Loans) or (B) they apply to periods after the then Latest Maturity Date with respect to the Term Loans. (c) Any Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate, upfront fees and original issue discount and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) any Incremental Revolving Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments, (v) such Incremental Revolving Commitments have solely the same guarantors and are secured solely by the same assets as the Revolving Credit Commitments and (vi) except to the extent otherwise permitted by this Section 2.14, shall have the same terms and conditions as the Revolving Credit Facility; provided that, to the extent such terms and conditions are not the same as the Revolving Credit Facility in any material respect (as determined in good faith by the Borrower), such terms shall be reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that (A) are more favorable to the Lenders under the Revolving Credit Facility than the terms and conditions of the Revolving Credit Facility, to the extent that they are added for the benefit of the Lenders under the Revolving Credit Facility (which such amendments may be effected without consent of the Lenders under the Revolving Credit Facility) or (B) they apply to periods after the then Latest Maturity Date with respect to the Revolving Credit Facility. (d) Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Commitments shall be ~~made~~reasonably satisfactory to the Borrower and the Administrative Agent and, in the case of Incremental Revolving Commitments, the L/C Issuer and ~~Revolving Commitment Increases may be provided~~Swing Line Lender (any such bank, ~~by any~~ financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, ~~if any, and~~ the Administrative ~~Agent~~Agent and, in the case of any Incremental Revolving Commitments, each L/C Issuer and Swing Line Lender. ~~The~~ No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the ~~Agents or the Lenders, effect~~ Additional Lenders with respect to such ~~amendments to this Agreement and the other Loan Documents as may be necessary or appropriate~~Incremental Facility Amendment and, in the ~~reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect~~ case of Incremental ~~Term Loans as “Lenders”~~Revolving Commitments, the L/C Issuer and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this AgreementSwing Line Lender. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Commitments, unless it so agrees~~. (d) Upon each increase~~ . Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the ~~Revolving Credit Commitments pursuant~~ opinion of the Administrative Agent, to effect the provisions of this Section 2.14~~, (a) each Revolving Credit Lender immediately prior~~ . Any Incremental Facility Amendment shall be pursuant to ~~such increase will automatically and without further act~~ documentation to be ~~deemed to have assigned to each Lender providing a portion of~~ mutually agreed by the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participationsBorrower, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceeach Additional Lender. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Facility Amendment ~~shall be subject to~~shall, ~~if requested by the Administrative Agent, receipt~~ unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties ~~contained~~ of each Loan Party set forth in ~~Article V~~ Section 4.02 being true and ~~the other Loan Documents~~ correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date) and (orii) no Event of Default shall exist, ~~with respect~~ or would immediately result from such issuance of the Incremental Facility; provided in the case of Incremental Facilities the proceeds of which will be used to finance a Limited Condition Transaction, (1) the only representations and warranties ~~modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except~~ that will be required to ~~the extent that such representations and warranties specifically refer to an earlier date, in which case they shall~~ be true and correct in all material respects ~~(or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects)~~ as of ~~such earlier date.~~ the applicable Incremental Facility Closing Date shall be the Specified Representations and (g2) ~~This~~ Section ~~2.14~~ 4.02(b) shall ~~supersede~~ be limited to Specified Events of Default. The proceeds of any ~~provisions~~ Incremental Term Loans will be used for general corporate purposes (including (without limitation) Permitted Acquisitions) and for any other purpose not prohibited hereunder. Upon each increase in ~~Section 2.13 or 10.01 to the contrary.~~t

Appears in 2 contracts

Sources: Credit Agreement (Holley Inc.), Credit Agreement (Holley Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to time after the ~~Closing~~ Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver a copy~~ make available to each of the Lenders), request ~~(a) one or more additional tranches of term loans (the “Incremental Term Loans”) or (b)~~ to effect one or more increases in the aggregate amount of the Revolving ~~Credit~~ Commitments ~~of any Facility~~ (each such increase, a “Revolving Commitment Increase”)) from Additional Revolving Lenders; ~~provided,~~ provided that at the time of each such request and upon the effectiveness of ~~any~~ each Incremental ~~Amendment referred to below and at~~ Revolving Facility Amendment, (A) the ~~time that any such Incremental Term Loan is made~~ conditions set forth in Section 4.02 shall be satisfied, (B) the Borrower shall be in compliance on a Pro Forma Basis (before and after giving effect ~~thereto)~~to any such Revolving Commitment Increase and assuming that such newly-incurred Revolving Commitment Increase is fully drawn) with (x) a Senior Secured Leverage Ratio not to exceed 3.50 to 1.00, ~~(i) no Default or Event~~ as of ~~Default shall exist~~ the last day of the most recently ended LTM Period and (iiy) ~~Parent shall be in Pro Forma Compliance with Section 7.09 for~~ the Financial Performance Covenant at the level that is 0.25 to 1.00 below the then applicable covenant level as of the end of the most recently ended Test ~~Period for which financial statements~~ Period, (C) the Borrower shall have ~~been~~ delivered ~~pursuant~~ a certificate of a Financial Officer to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the ~~limit~~ effect set forth in ~~the next sentence). Notwithstanding anything to the contrary herein~~clauses (A) and (B) above, ~~the aggregate amount of the Incremental Term Loans~~ together with reasonably detailed calculations demonstrating compliance with clause (B) above and ~~the Revolving Commitment Increases~~ (~~other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16~~D) ~~shall not exceed the Maximum Incremental Facilities Amount. (b) Any~~ such Revolving Commitment Increase shall be on the same terms ~~and~~ (other than any upfront fees) governing the Revolving Commitments pursuant to this Agreement. Notwithstanding anything to contrary herein, the ~~same documentation applicable~~ sum of (i) the aggregate principal amount of the Revolving Commitment Increases and (ii) the aggregate principal amount of all Term Commitment Increases incurred after the Effective Date shall not exceed the Incremental Cap. Each Revolving Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the Incremental Cap. (b) At any time and from time to time after the Effective Date, subject to the ~~Revolving Credit~~ terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make such notice available to each of the Lenders), request to effect one or more additional tranches of term loans hereunder or increases in the aggregate amount of the Term Commitments which shall take the form of an additional tranche of term loans hereunder (each such increase, a “Term Commitment Increase”, and the term loans made thereunder, “Incremental Term Loans”) from one or more Additional Term Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Term Facility Amendment, (~~including~~ A) the ~~maturity date~~ conditions set forth in ~~respect thereof but excluding up-front commitment or similar fees)~~Section 4.02 shall be satisfied; provided, further, that if the ~~Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The~~ proceeds of such Incremental Term Loans are being used to finance a Permitted Acquisition or similar Investment, (ax) the reference in Section 4.02(a) to the accuracy of the representations and warranties shall ~~rank pari passu~~ refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference in Section 4.02(b) to Default and Event of Default shall mean the absence of a Default or ~~junior in right~~ Event of ~~payment~~ Default at the time that the main transaction agreement governing such Permitted Acquisition or Investment is executed and ~~of security with the Revolving Credit Loans~~ delivered and the absence of an Event of Default under Sections 7.01(a), (b), (h) or (i) immediately prior to and after giving effect to the incurrence of such Incremental Term Loans, (bB)(I) the Senior Secured Leverage Ratio, calculated on a Pro Forma Basis before and after giving effect to any Incremental Term Loans made pursuant to such Term Commitment Increase as of the last day of the most recently ended LTM Period, shall not ~~mature~~ exceed 3.50 to 1.00 and (II) on a Pro Forma Basis before and after giving effect to any Incremental Term Loans made pursuant to such Term Commitment Increase, the Borrower shall be in compliance with the Financial Performance Covenant at the level that is 0.25 to 1.00 below the then applicable covenant level as of the end of the most recently ended Test Period, (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above, (D) the maturity date of any term loans incurred pursuant to such Term Commitment Increase shall not be earlier than the Latest Maturity Date ~~with respect to~~ then in effect and the ~~Term Loans, (c) shall not have a shorter~~ Weighted Average Life to Maturity of any term loans incurred pursuant to such Term Commitment Increase shall be no shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Term Loans, (dE) ~~shall be entitled~~ the interest rate margins and, subject to ~~share in mandatory and voluntary prepayments on a ratable~~ clause (~~or less than ratable~~D), ~~but in no event greater than ratable) basis with~~ the amortization schedule for any term loans incurred pursuant to such Term ~~Loans, and (e) shall bear interest at rates and be entitled to upfront fees as~~ Commitment Increase shall be determined by ~~Parent~~ the Borrower and the Additional Term Lenders with the applicable ~~new Lenders~~Term Commitment Increases; ~~provided, however,~~ provided that if in the event that the All-In Yield ~~for Incremental~~ of any Term ~~Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed~~ Commitment Increase exceeds the All-In Yield ~~with respect to the~~ of any then existing Term Loans by more than 50 basis points, then the interest rate margins ~~applicable to the~~ for such Term Loans shall be increased to the extent necessary so that the All-In Yield of the Term Loans is equal to the All-In Yield of such ~~excess~~ term loans incurred pursuant to such Term Commitment Increase minus 50 basis points (“MFN Protection”), and (F) any Incremental Term Facility Amendment shall be ~~only 50 basis points. The Incremental Term Loans shall otherwise be~~ on the terms and pursuant to documentation to be determined by ~~Parent~~the Borrower and the Additional Term Lenders with the applicable Term Commitment Increases. Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Term Commitment Increases and (ii) the aggregate principal amount of all Revolving Commitment Increases after the Effective Date shall not exceed the Incremental Cap. Each Term Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, no consent shall be required from the Administrative Agent or any Lender to the extent that such ~~financial maintenance covenant is also added for~~ amount may be less than $5,000,000 if such amount represents all the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to~~ remaining availability under the Incremental ~~Term Loans shall be determined by Parent and the lenders thereof~~Cap. (ci) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount ~~and proposed terms~~ of the relevant ~~Incremental Term Loans or~~ Revolving Commitment ~~Increases. Incremental~~ Increase or Term ~~Loans may be made, and Revolving~~ Commitment ~~Increases may be provided, by any existing Lender or by any other bank or other financial institution~~ Increase. (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheldii) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of ~~Incremental Term Loans and~~ any Revolving Commitment ~~Increases~~ Increase shall become Commitments (or in the case of a any Revolving Commitment Increase to be provided by an existing Revolving ~~Credit~~ Lender, an increase in such Revolving Lender’s ~~applicable~~ Revolving ~~Credit~~ Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each~~ such Additional Revolving Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ Revolving Commitment Increases may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Facility or, unless it agrees, be obligated to provide any Incremental Revolving Loan or Revolving Commitment Increase) or by any Additional Revolving Lender. An Incremental Revolving Facility Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicableSection. The effectiveness of any Incremental Revolving Facility Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such ~~further conditions~~ Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Revolving Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). (iii) Commitments in respect of any Term Commitment Increase (the “Incremental Term Commitments”) shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as ~~Parent~~ appropriate, the other Loan Documents executed by the Borrower, each applicable Additional Term Lender and the ~~applicable Lenders and Additional Lenders shall agree~~Administrative Agent. ~~The Borrowers~~ Term Commitment Increases may ~~use~~ be provided, subject to the ~~proceeds~~ prior written consent of the ~~Incremental Term Loans and Revolving Commitment Increases for~~ Borrower (not to be unreasonably withheld), by any ~~purpose not prohibited by this Agreement. No~~ existing Lender (it being understood that no existing Lender shall have any right to participate in any Term Commitment Increase or, unless it agrees, be obligated to provide any Term Commitment Increases) or by any Additional Term Lender. An Incremental Term ~~Loans~~ Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or ~~Revolving Commitment Increases~~appropriate, ~~unless~~ in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Term Facility Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it ~~so agrees~~being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Term Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent); provided that if the proceeds of such Incremental Term Commitments are being used to finance a Permitted Acquisition or similar Investment, (x) the reference in Section 4.02(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference in Section 4.02(b) to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition or Investment is executed and delivered and the absence of an Event of Default under Sections 7.01(a), (b), (h) or (i) immediately prior to and after giving effect to the incurrence of such Incremental Term Commitments. (d) Upon each ~~increase in the~~ Revolving ~~Credit Commitments~~ Commitment Increase pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving ~~Credit~~ Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Additional Revolving Lender providing a portion of ~~the~~ such Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving ~~Credit ▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and ~~Swing Line~~ Swingline Loans such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Letters of Credit and (iiB) participations hereunder in ~~Swing Line~~ Swingline Loans held by each Revolving ~~Credit~~ Lender (including each such Revolving Commitment Increase Lender) will equal such Revolving Lender’s Applicable Percentage. Any Revolving Loans outstanding immediately prior to the ~~percentage~~ date of such Revolving Commitment Increase that are Eurodollar Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such Loans immediately prior to the date of such Revolving Commitment Increase, in each case until the last day of the ~~aggregate~~ then-current Interest Period applicable to any such Loan, at which time it will be repaid or refinanced with new Revolving ~~Credit Commitments~~ Loans made pursuant to Section 2.01 in accordance with the Applicable Percentages of the Revolving Lenders after giving effect to the Revolving Commitment Increase; provided, however, that upon the occurrence of any Event of Default, each Revolving Commitment Increase Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans of other Revolving Lenders so that, after giving effect thereto, all Revolving ~~Credit~~ Loans that are Eurodollar Loans are held by the Revolving Lenders ~~represented by~~ in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04; provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. If there are any ABR Revolving ~~Credit Lender’s Revolving Credit Commitment and (b) if,~~ Loans outstanding on the date of such ~~increase, there are any~~ Revolving ~~Credit Loans under the applicable Facility outstanding~~Commitment Increase, such ~~Revolving Credit~~ Loans shall either be prepaid by the Borrower on such date or ~~prior~~ refinanced on such date (subject to satisfaction of applicable borrowing conditions) with Revolving Loans made on such date by the Revolving Lenders (including the Revolving Commitment Increase Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Revolving Commitment Increase Lender will make ABR Revolving Loans to the ~~effectiveness~~ Borrower by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Revolving Commitment Increase Lender’s Revolving Commitment Increase by the aggregate amount of the Revolving Commitments (after giving effect to the Revolving Commitment Increase on such date) and (ii) such funds will be ~~prepaid from~~ applied to the ~~proceeds~~ prepayment of ~~additional~~ outstanding ABR Revolving ~~Credit~~ Loans ~~under~~ held by the ~~applicable Facility made hereunder (reflecting~~ Revolving Lenders other than the Revolving Commitment Increase Lenders, and transferred by the Administrative Agent to the Revolving Lenders other than the Revolving Commitment Increase Lenders, in such ~~increase~~ amounts so that, after giving effect thereto, all ABR Revolving Loans will be held by the Revolving Lenders in accordance with their then-current Applicable Percentages. On the date of such Revolving ~~Credit Commitments)~~Commitment Increase, ~~which prepayment shall be accompanied by~~ the Borrower will pay to the Administrative Agent, for the accounts of the Revolving Lenders receiving such prepayments, accrued and unpaid interest on the principal amounts of their Revolving ~~Credit~~ Loans being ~~prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05~~prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) ~~Notwithstanding anything~~ Upon each Term Commitment Increase pursuant to this Section, each Additional Term Lender shall make an additional term loan to the ~~contrary~~ Borrower in ~~this Section 2.14 or in Article IV or otherwise in this Agreement, so long~~ a principal amount equal to such Lender’s Term Commitment Increase. The Administrative Agent shall promptly notify each Lender as ~~no Event~~ to the effectiveness of ~~Default has occurred pursuant~~ each Term Commitment Increase and Revolving Commitment Increase and shall make available to ~~Section 8.01(a) or (f),~~ the ~~lenders providing~~ Lenders a copy of any each Incremental Term ~~Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such~~ Facility Amendment and Incremental ~~Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis~~Revolving Facility Amendment. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section ~~2.14~~ 2.20 shall supersede any provisions in Section ~~2.13~~ 2.18 or ~~10.01~~ Section 9.02 to the contrary.

Appears in 2 contracts

Sources: Credit Agreement (TA Holdings 1, Inc.), Credit Agreement (TA Holdings 1, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to add one or more ~~additional~~ tranches of term A loans (the “Incremental Term A Loans”) or term B loans (bthe “Incremental Term B Loans” and, together with the Incremental Term A Loans, the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or one or more increases in the Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “Incremental Facilities”); provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, no Default has occurred and is continuing or shall result therefrom, (ii) after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect to any Specified Transaction consummated in connection therewith, the Borrower is in compliance (on a Pro Forma Basis) with the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio Financial Covenants as of the end of the most recent Test Period (as if the incurrence of such Incremental Facility had occurred on the first day of such Test Period) and (iii) the sum of (A) the aggregate principal amount of the Revolving Credit Commitments of any Facility (each such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto)Commitment, (iB) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Mission Revolving Credit Commitment, (C) all Incremental Facilities consisting of Incremental Revolving Commitments and Incremental Term ~~Loans~~ A Loans, and ~~the~~ (D) Mission Incremental Facilities consisting of Mission Incremental Revolving ~~Commitment Increases (other than~~Commitments and Mission Incremental Term A Loans, ~~for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16)~~ shall not exceed ~~the Maximum Incremental Facilities Amount~~$350,000,000. (b) ~~Any Revolving Commitment Increase~~ The Incremental Facilities are subject to the following terms and conditions: (i) each Incremental Facility shall ~~be on~~ have the same ~~terms~~ guarantees as, and ~~pursuant to~~ be secured on a pari passu basis by the same ~~documentation applicable~~ Collateral securing, the Obligations hereunder; (ii) no existing Lender will be required to ~~the Revolving Credit~~ participate in any such Incremental Facility without its consent; (~~including~~ iii) no Default would exist after giving effect thereto; (iv) the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The of any such Incremental Term B Loans (aincluding any Refinancing Term Loans) shall ~~rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature~~ be no earlier than the Maturity Date ~~with respect to~~ of the Term ~~Loans, (c) shall not have a shorter~~ B-2 Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B-2 Loans; (v) in the case of Incremental Revolving Commitments, (dA) the maturity date of such Incremental Revolving Commitments shall be ~~entitled~~ the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to ~~share~~ the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility; (vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and ~~voluntary prepayments~~ pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a ~~ratable (or less than ratable, but in no event greater than ratable)~~ pro rata basis with the Revolving Credit Facility; (vii) the interest rate margins, the maturity date of any Incremental Term ~~Loans,~~ A Loans and (esubject to clauses (iv) ~~shall bear interest at rates~~ and ~~be entitled~~ (vi) above, as appropriate) amortization schedule applicable to ~~upfront fees as~~ any Incremental Term Loans or Incremental Revolving Facilities shall be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders~~lenders thereunder; ~~provided, however,~~ provided that if (x) in the ~~All-In Yield~~ event that the total all in interest rate margins for any Incremental Term B Loans or any Incremental Revolving Facility (in each case, other than Refinancing Term Loans and Refinancing Revolving Commitments) that ~~are~~ is incurred ~~under this Section 2.14~~ on a or prior to the date that is ~~prior to~~ 18 months after the ~~twelve (12) month anniversary of~~ Closing Date are higher than the ~~Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to~~ interest rate margins for the Term B Loans or the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term B Loans or the Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term B Loans, or Incremental Revolving Facility, as the case may be, minus 50 basis points and (y) in the event that the total all in interest rate margins for any Incremental Term B Loans (other than Refinancing Term Loans) that is incurred on or prior to the date that is 18 months after the Second Incremental Amendment Closing Date are higher than the interest rate margins for the Term B-2 Loans by more than (in any case) 50 basis points, then the interest rate margin for the Term B-2 Loans shall be increased to the extent necessary so that such interest rate margin is equal to the interest rate margin for such Incremental Term B Loans minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Term B Loans, the Term B Loans and the Term B-2 Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B Loans or Term B-2 Loans, as applicable, or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any Incremental Term A Loans, Incremental Term B Loans or Incremental Revolving Facility shall be excluded, (B) original issue discount (“OID”) and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B Loans or Term B-2 Loans, as applicable, or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans, the Term B-2 Loans, or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term ~~Loans~~ B Loans, the Term B-2 Loans, or the Revolving Credit Facility, as applicable, shall be increased ~~so that~~ to the extent of such ~~excess~~ differential between interest rate floors; (viii) any Incremental Term A Loans, for purposes of prepayments, shall be ~~only 50 basis points. The~~ treated substantially the same as (and in any event no more favorably than) the Term B Loans and the Term B-2 Loans; (ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans and the Term B-2 Loans; (x) any Incremental Term Loans or any Incremental Revolving Facility shall ~~otherwise~~ be on terms and pursuant to documentation to be ~~determined by Parent~~determined; provided that, to the extent such terms and documentation are not consistent with the Term B Loans, the Term B-2 Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (aiv), (vi), (vii), (viii) ~~through~~ and (eix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (~~it being understood~~ x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to the ~~extent that any~~ Intercreditor Agreement and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance ~~covenant~~ covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term B-2 Loans); provided, however, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and (xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is ~~added for~~ not less than (A) $25,000,000 in the ~~benefit~~ case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving ~~Commitment Increase, no consent shall be required from the Administrative Agent~~ Facilities or ~~any Lender to the extent~~ Incremental Revolving Commitments; provided that such ~~financial maintenance covenant is also added for~~ amount may be less than the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c)~~ applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above~~, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans or Revolving Commitment Increases.~~ Loans, Incremental Term ~~Loans may be made~~Loan Increases, ~~and~~ Incremental Revolving ~~Commitment Increases may be provided~~Facilities and/or Incremental Revolving Commitments. Any additional bank, ~~by any~~ financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Intermediate Parent, the Ultimate Parent, the Borrower, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) all references to “the date of such ~~further conditions as Parent~~ Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date, (ii) the Incremental Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section 4.02(a) and (iii) to the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ extent the proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, the conditions in Section 4.02 may be subject to customary “SunGard” limitations). The proceeds of any Incremental Term Loans and ~~Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any~~ Incremental Term ~~Loans or Revolving Commitment Increases, unless it so agrees.~~ Loan Increases will be used only for general corporate purposes (d) including Permitted Acquisitions). Upon each increase in the ~~Revolving Credit~~ Aggregate Commitments pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (each a “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Letters of Credit and (iiB) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 2 contracts

Sources: Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)

Incremental Credit Extensions. (a) ~~Parent~~ The Borrower Representative may, at any ~~time~~ time, on one or ~~from time~~ more occasions deliver a written request to ~~time after the Closing Date, by notice to the~~ Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~), request~~ ) to (ai) add one or more ~~additional~~ new tranches of term facilities and/or increase the principal amount of any Class of the Term Loans by requesting new term loansloan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans ~~(the~~ made pursuant to an Incremental Term Facility, “Incremental Term Loans”) or and/or (bii) ~~one or more increases in~~ increase the ~~amount of the~~ Total Revolving Credit ~~Commitments of any Facility~~ Commitment (each such increase, a an “Incremental Revolving Commitment Increase~~”); provided~~” and, ~~that upon the effectiveness of~~ together with any Incremental ~~Amendment referred to below~~ Term Facility, “Incremental Facilities”; and at the ~~time that~~ loans thereunder, “Incremental Revolving Loans” and, together with any ~~such~~ Incremental Term ~~Loan is made~~ Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000from and after the Third Amendment Effective Date, $75,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect ~~thereto)~~to such Incremental Facility, ~~(i) no Default or Event of Default shall exist~~ the Secured Leverage Ratio and ~~(ii) Parent shall be in~~ the Total Leverage Ratio calculated on a Pro Forma ~~Compliance with Section 7.09 for~~ Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section ~~6.01. Each tranche~~ 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental ~~Term~~ Loans or any Incremental Equivalent Debt) would not exceed 3.753.50 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and ~~each~~ any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an ~~aggregate principal amount that is~~ Incremental Commitment of not less than $~~50 million~~ 5,000,000, (~~provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything~~ ii) except as otherwise specifically agreed by any Lender prior to the ~~contrary herein~~date hereof, or separately agreed from time to time between the ~~aggregate amount of the~~ Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental ~~Term Loans~~ Commitment and the ~~Revolving Commitment Increases~~ determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (~~other than, for~~ iii) the ~~avoidance~~ creation or provision of ~~doubt, those established in respect of Extended Term Loans~~ any Incremental Facility or ~~Extended Revolving Credit Commitments pursuant to Section 2.16)~~ Incremental Loan shall not ~~exceed~~ require the ~~Maximum~~ approval of any existing Lender other than any existing Lender providing all or part of any Incremental ~~Facilities Amount.~~Commitment, (biv) ~~Any~~ each Incremental Revolving Commitment Increase ~~shall~~ will be on subject to the same terms and ~~pursuant to the same documentation~~ conditions as those applicable to the Revolving ~~Credit~~ Facility (~~including~~ and be deemed added to and made a part of the ~~maturity date in~~ Revolving Facility), (v) any Incremental Term Facility that constitutes an increase to an existing Class of Term Loans shall have the same interest rate as the applicable Class of Term Loans, and otherwise the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the lowest corresponding interest rate applicable to the then-existing Term Loans, unless the interest rate margin with respect ~~thereof but excluding up-front commitment or similar fees); provided,~~ to such existing Term Loans is adjusted to be equal to the ~~Applicable Rate~~ interest rate with respect to the ~~Revolving Credit~~ relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility ~~may be increased if necessary~~ or Incremental Term Loans shall not, after giving effect to ~~be consistent with that required~~ any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the ~~lenders providing~~ Subordination Agreement;; provided, further, that in determining the ~~Revolving Commitment Increase. The~~ applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (abased on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall ~~rank pari passu~~ be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or ~~junior~~ payable to the Arrangers (or their Affiliates) in ~~right of payment and of security~~ their respective capacities as such in connection with the ~~Revolving Credit~~ Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and ~~the~~ (z) if such Incremental Term ~~Loans, (b) shall not mature earlier~~ Facility or Incremental Term Loans include any interest rate floor greater than ~~the Maturity Date with respect~~ that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (cvi) any Incremental Term Facility that constitutes an increase to an existing Class of Term Loans shall ~~not~~ have ~~a shorter~~ the same final maturity date as the applicable Class of Term Loans, and otherwise the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) any Incremental Term Facility that constitutes an increase to an existing Class of Term Loans shall have the same Weighted Average Life to Maturity as the applicable Class of Term Loans, and otherwise the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the shortest remaining Weighted Average Life to Maturity of any Class of the then-existing Term Loans, , (dviii) any Incremental Facility shall ~~be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with~~ have the ~~Term Loans, and (e) shall bear interest at rates~~ same guarantees as and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield pari passu with respect to security with the ~~Term~~ existing Loans and no Incremental Facility shall be guaranteed by ~~more~~ any Person that is not a Loan Guarantor or secured by any assets other than ~~50 basis points, then the interest rate margins applicable to the~~ Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be ~~increased so~~ made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such ~~excess shall be only 50 basis points. The~~ Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise ~~be on terms and pursuant~~ agreed by the lenders providing such Incremental Commitments to ~~documentation~~ finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to ~~be determined by Parent~~or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the ~~extent~~ requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms ~~and documentation are~~ of any Incremental Term Facilities, if not consistent with the terms of the applicable Class of Term ~~Loans (except to the extent permitted by clauses (a) through (e) above)~~Loans, ~~they~~ shall be ~~reasonably satisfactory to~~ as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the ~~extent that any financial maintenance covenant is added for~~ applicable Class of Term Loans and applicable only after the ~~benefit~~ then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term ~~Loan~~ Loans that will be added to any Class of Term Loans or ~~Revolving Commitment Increase~~Additional Term Loans, ~~no consent shall be required from the Administrative Agent or any Lender~~ and notwithstanding anything to the ~~extent that~~ contrary set forth in Sections 2.07 and 2.12, such ~~financial maintenance covenant is also added for the benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the~~ new Incremental Term Loans shall be ~~determined by Parent~~ added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the ~~lenders thereof~~same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (cb) ~~Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant~~ Incremental ~~Term Loans or Revolving Commitment Increases. Incremental Term Loans~~ Commitments may be ~~made, and Revolving Commitment Increases may be provided,~~ provided by any existing ~~Lender~~ Lender, or by any other ~~bank or other financial institution~~ lender (any such other ~~bank or other financial institution~~ lender being called an “Additional Lender”); ~~provided,~~ provided that the Administrative ~~Agent, each Swing Line~~ Agent (and the Swingline Lender and ~~each L/C Issuer~~ Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such ~~Lender’s or~~ Additional Lender’s ~~making~~ providing such Incremental ~~Term Loans or providing such Revolving Commitment Increases~~ Commitments if such consent would be required under Section ~~10.06(b~~9.05(b) for an assignment of Loans ~~or Revolving Credit Commitments~~to such Additional Lender; provided, ~~as applicable~~further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional ~~Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of~~ Lender providing a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent portion of the ~~Agents or the Lenders, effect such amendments~~ Incremental Commitments shall execute and deliver to ~~this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of~~ the Administrative Agent and ~~Parent~~ the Borrower Representative all such documentation (including an amendment to ~~effect~~ this Agreement or any other Loan Document) as may be reasonably required by the ~~provisions~~ Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of ~~this Section 2.14~~such Incremental Commitments, ~~including without limitation~~ each Additional Lender added as a new Lender pursuant to ~~incorporate the applicable lenders in respect of~~ such Incremental ~~Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”,~~ Commitments shall become a Lender for all ~~applicable~~ purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by in connection with this Agreement~~. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees~~. (d) ~~Upon each increase~~ As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving ~~Credit Commitments~~ Commitment Increase pursuant to this Section ~~2.14~~2.21, (ai) each Revolving ~~Credit~~ Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of ~~the~~ such Incremental Revolving Commitment Increase (each a “~~Revolving~~ Commitment Increase Lender”)) in respect of such increase, and each such ~~Revolving~~ Commitment Increase Lender will automatically and without further act be deemed to have assumed ~~(in the case of an increase to the Revolving Credit Facility only),~~ a portion of such Revolving ~~Credit ▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and ~~Swing Line~~ Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Letters of Credit and (iiB) participations hereunder in ~~Swing Line~~ Swingline Loans held by each Revolving ~~Credit~~ Lender (including each such ~~Revolving~~ Commitment Increase Lender) will equal the percentage of the ~~aggregate~~ Total Revolving Credit ~~Commitments~~ Commitment of all Revolving ~~Credit~~ Lenders represented by such Revolving ~~Credit~~ Lender’s Incremental Revolving ~~Credit~~ Commitment and (bii) if, on the date of such increase, there are any Revolving ~~Credit~~ Loans ~~under the applicable Facility~~ outstanding, such Revolving ~~Credit~~ Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving ~~Credit~~ Loans ~~under the applicable Facility~~ made hereunder (reflecting such ~~increase in~~ Incremental Revolving ~~Credit Commitments~~Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving ~~Credit~~ Loans being prepaid and any ~~reasonable and documented out-of-pocket~~ costs incurred by any Revolving Lender in accordance with Section ~~3.05~~2.15. The Administrative Agent and the Revolving Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence~~. (e) Notwithstanding anything~~ ; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the ~~contrary in this Section 2.14 or in Article IV or otherwise in this Agreement~~immediately preceding sentence, ~~so long as no Event~~ (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of ~~Default has occurred pursuant to Section 8.01(a~~any previously existing Revolving Credit Commitments and (B) ~~or (f), the lenders providing any Incremental Term Loans~~ repayments made in connection with a ~~Permitted Acquisition may agree~~ permanent repayment and termination of commitments (subject to ~~modify the conditionality~~ clause (3) below)) of Loans with respect to ~~such~~ any Incremental ~~Term~~ Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans ~~such~~ and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the ~~Permitted Acquisition may~~ Borrowers shall be ~~consummated~~ permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a ~~“certain funds” basis~~pro rata basis as compared to any other class with a later maturity date than such class. (f) The ~~effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by~~ Lenders hereby irrevocably authorize the Administrative Agent ~~of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including~~ to ~~reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such~~ enter into amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V this Agreement and the other Loan Documents ~~shall~~ with the Borrowers as may be ~~true~~ necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and ~~correct~~ such technical amendments as may be necessary or appropriate in ~~all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as~~ the reasonable opinion of the ~~effective date~~ Administrative Agent and the Borrower Representative in connection with the establishment of such ~~Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (~~new tranches or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 2 contracts

Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrowers may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to add one or more additional tranches of term loans (the “Incremental Term Loans”) or ~~(b)~~ one or more increases in the ~~amount of the~~ Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”), provided that at the time of ~~any Facility (~~each such ~~increase, a “Revolving Commitment Increase”); provided, that~~ request and upon the effectiveness of ~~any~~ each Incremental Facility Amendment ~~referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (i)~~ no Default or Event of Default has occurred and is continuing or shall ~~exist~~ result therefrom. Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments), together with the aggregate principal amount of all Permitted First Lien Secured Debt, shall not exceed the sum of (iix) ~~Parent~~ $350,000,000 plus (y) the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder or any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder shall not increase the calculation of the amount under this clause (y)); provided that the Borrowers may incur unlimited additional Incremental Facilities and Permitted First Lien Secured Debt so long as, after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Commitments are drawn in full) and after giving effect to any Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments, the First Lien Senior Secured Leverage Ratio shall not exceed 3.25:1.00. Each Incremental Facility shall be in ~~Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche~~ an integral multiple of ~~Incremental Term Loans~~ $1,000,000 and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $~~50 million (provided~~15,000,000 in case of Incremental Term Loans or $15,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in above. Each Incremental Facility shall have the ~~next sentence). Notwithstanding anything to~~ same guarantees as, and be secured by the ~~contrary herein~~same Collateral securing, ~~the aggregate amount~~ all of the ~~Incremental Term Loans and the Revolving Commitment Increases (~~other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities AmountObligations hereunder. (b) Any ~~Revolving Commitment Increase~~ Incremental Term Loans (i) for purposes of prepayments, shall be on treated substantially the same as (and in any event no more favorably than) the Term B Loans and (ii) other than amortization, pricing or maturity date, shall have the same terms ~~and pursuant~~ as the Term B Loans or such terms as are reasonably satisfactory to the ~~same documentation applicable~~ Administrative Agent, provided that (A) except in the case of Refinancing Term Loans, if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing the Term B Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to the ~~Revolving Credit~~ Term B Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% (~~including~~ or 1.00% in the ~~maturity date in respect thereof but excluding up-front commitment or similar fees~~case of Term B-2 Loans)~~; provided~~, the Applicable Rate ~~with respect~~ relating to the ~~Revolving Credit Facility may~~ Term B Loans shall be ~~increased if necessary~~ adjusted to be ~~consistent~~ equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with ~~that required by~~ original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the ~~lenders~~ actual Weighted Average Life to Maturity) payable to all Lenders providing ~~the Revolving Commitment Increase. The~~ such Incremental Term Loans (abut excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) ~~shall rank pari passu~~ relating to such Incremental Term Loans minus 0.50% (or ~~junior~~ 1.00% in ~~right~~ the case of ~~payment and~~ Term B-2 Loans); provided that, in the case of ~~security with~~ this clause (A), (i) if the ~~Revolving Credit~~ Incremental Term Loans ~~and~~ include an interest rate floor greater than the applicable interest rate floor under the Term B Loans, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under the Term B Loans shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (bbut not the Applicable Rate) applicable to the Term B Loans shall be increased to the extent of such differential between interest rate floors and (ii) in the case of Permitted First Lien Secured Debt that bears interest at a fixed rate, for purposes of Section 7.01(ee), such Permitted First Lien Secured Debt shall be swapped to a floating rate on a customary matched maturity basis as is reasonably acceptable to the Administrative Agent, and such swapped rate shall be used to make the calculations set forth in this clause (A), (B) any Incremental Term Loan shall not ~~mature~~ have a final maturity date earlier than the Maturity Date ~~with respect~~ applicable to the Term ~~Loans,~~ B-1 Loans and (cC) any Incremental Term Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the then-remaining Term B-1 Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Any Incremental Revolving Commitment shall be on terms (other than pricing) and pursuant to the documentation applicable to the Revolving Credit Commitments; provided that except in the case of Refinancing Revolving Commitments, if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing such Incremental Revolving Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Revolving Commitments exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing the Revolving Credit Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to the Revolving Credit Commitments immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate relating to the Revolving Credit Commitments shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing such Incremental Revolving Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Incremental Revolving Commitments minus 0.50%; provided that, in the case of this clause (A), if the Incremental Revolving Commitments include an interest rate floor greater than the applicable interest rate floor under the Revolving Credit Commitments, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under the Revolving Credit Commitments shall be required, but only to the extent an increase in the interest rate floor in the Revolving Credit Commitments would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to the Revolving Credit Commitments shall be increased to the extent of such differential between interest rate floors. (d) Each notice from ~~Parent~~ the Borrowers pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Commitments shall be ~~made~~reasonably satisfactory to the Borrowers and the Administrative Agent (any such bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Parent and Topco (prior to a Trigger Event), Holdings, the ~~applicable Borrower~~Borrowers, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provided any Incremental Term Loans or Incremental Revolving Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicableSection. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such ~~further conditions as Parent~~ Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) the ~~applicable Lenders and Additional Lenders~~ Incremental Closing Facility Closing Date shall ~~agree. The Borrowers may use~~ be deemed to be the initial Credit Extension for purposes of Section 4.02(a) to the extent the proceeds of the Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement~~Facility are being used to finance a Permitted Acquisition). ~~No Lender shall be obligated to provide~~ The proceeds of any Incremental Term Loans ~~or Revolving Commitment Increases, unless it so agrees.~~ will be used only for general corporate purposes (d) including Permitted Acquisitions). Upon each increase in the Revolving ~~Credit~~ Commitments pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (each a “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving ~~Credit~~ Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 2 contracts

Sources: Credit Agreement (Kinetic Concepts Inc), Credit Agreement (KCI Animal Health, LLC)

Incremental Credit Extensions. (ai) ~~Parent may, at~~ At any time or and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver a copy~~ make such notice available to each of the Lenders), request ~~(a)~~ to effect one or more additional tranches of ~~term loans~~ revolving credit commitments (~~the~~ “Incremental ~~Term~~ Revolving Credit Commitments” and any related revolving credit loans thereunder, “Incremental Revolving Credit Loans”) or ~~(b) one or more~~ increases in the aggregate amount of the Revolving Credit Commitments of under any ~~Facility~~ existing Class (each such increase, a “Revolving Credit Commitment Increase”); ~~provided~~together with the Incremental Revolving Credit Loans, “Incremental Revolving Credit Facilities”) from Additional Revolving Credit Lenders; provided that at the time of each such request and upon the effectiveness of ~~any~~ each Incremental ~~Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto)~~Revolving Credit Facility Amendment, (iA) no ~~Default or~~ Event of Default shall ~~exist~~ result therefrom, (B) the aggregate principal amount of all Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes incurred after the Closing Date would not exceed (iix) ~~Parent shall be in~~ $500,000,000 plus (y) an additional amount to the extent that the Senior Secured First-Lien Net Leverage Ratio (treating all such Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes as Senior Secured First-Lien Indebtedness solely for purposes of calculating such Senior Secured First-Lien Net Leverage Ratio even if such Indebtedness would not otherwise constitute Senior Secured First-Lien Indebtedness) on a Pro Forma ~~Compliance with Section 7.09 for~~ Basis after giving effect to the incurrence of any such proposed Incremental Revolving Credit Facilities and any related transactions (treating any proposed Incremental Revolving Credit Facilities and Additional Notes that are “revolving” in nature as fully drawn, but not including the proceeds of any proposed Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes in the amount of cash to be netted in calculating such ratio) would be less than or equal to 4.0:1.0 as of the end of the most recently ended Test ~~Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase~~ Period, (C) the Borrower shall be in ~~an aggregate principal amount that is~~ compliance on a Pro Forma Basis (treating any proposed Incremental Revolving Credit Facility as fully drawn, but not ~~less than $50 million (provided, that~~ including the proceeds of any such ~~amount may be less than $50 million if such amount represents all remaining availability under the limit set forth~~ deemed draw in the ~~next sentence~~amount of cash to be netted in calculating such ratio) with the Financial Performance Covenant as of the end of the most recent Test Period (regardless of whether such Financial Performance Covenant is applicable at such time)~~. Notwithstanding anything~~ , (D) (i) in the case of any Incremental Revolving Credit Loans, the maturity date thereof shall be no earlier than the Revolving Credit Maturity Date, such Incremental Revolving Credit Loans shall require no scheduled amortization or mandatory commitment reduction prior to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit ~~Commitments pursuant to Section 2.16~~Maturity Date and (ii) ~~shall not exceed the Maximum Incremental Facilities Amount. (b) Any~~ any Revolving Credit Commitment Increase shall be on the same terms (and pursuant to the same ~~documentation applicable to~~ documentation) governing the Revolving Credit ~~Facility~~ Commitments pursuant to this Agreement (including ~~the maturity date in respect thereof~~ upfront fees, but excluding ~~up-front commitment or similar~~ customary arranger fees)~~; provided~~, (E) the interest rate margins and, subject to clause (D), the ~~Applicable Rate with respect~~ amortization schedule applicable to ~~the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The~~ any Incremental ~~Term Loans (a) shall rank pari passu or junior in right of payment and of security with the~~ Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders~~Lenders thereunder; ~~provided, however,~~ provided that if in the ~~All-In~~ event that the Effective Yield for any Incremental ~~Term~~ Revolving Credit Loans ~~that are incurred under this Section 2.14 on a date that~~ is ~~prior to~~ higher than the ~~twelve (12) month anniversary of~~ Effective Yield for the ~~Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term~~ Revolving Credit Loans by more than 50 basis points, then the ~~interest rate margins applicable to~~ Effective Yield for the ~~Term~~ Revolving Credit Loans shall be increased to the extent necessary so that such ~~excess shall be only~~ Effective Yield is equal to the Effective Yield for such Incremental Revolving Credit Loans minus 50 basis points~~. The~~ ; provided, further, that, in determining the Effective Yield applicable to the Incremental ~~Term~~ Revolving Credit Loans incurred pursuant to such Incremental Revolving Credit Facility and the Revolving Credit Loans, (x) OID or upfront fees (which shall be deemed to constitute like amounts of OID for purposes of this determination) payable by the Borrower to the Revolving Credit Lenders or any Additional Revolving Credit Lenders (with OID being equated to interest based on assumed four-year life to maturity) shall be included, (y) customary arrangement or commitment fees payable to the Joint Bookrunners (or their Affiliates) in connection with this Agreement or to one or more arrangers (or their Affiliates) of any Incremental Revolving Credit Loans shall ~~otherwise~~ be excluded and (z) if the Incremental Revolving Credit Loan includes an interest rate floor greater than the interest rate floor applicable to the Revolving Credit Loans, such increased amount shall be equated to interest margin for purposes of determining whether an increase to the applicable interest margin for the Revolving Credit Loans shall be required, to the extent an increase in the interest rate floor in the Revolving Credit Loans would cause an increase in the interest rate then in effect, and in such case the interest rate floor applicable to the Revolving Credit Loans shall be increased by such increased amount and (F) any Incremental Revolving Credit Facility Amendment entered into after the Closing Date shall be on the terms and pursuant to documentation to be determined by ~~Parent~~the Borrower and the Additional Revolving Credit Lenders with the applicable Incremental Revolving Credit Facilities; provided ~~that,~~ that to the extent such terms and documentation are not consistent with ~~the Term Loans~~ this Agreement (except to the extent permitted by clauses (aD) ~~through~~ and (eE) above), they shall be reasonably satisfactory to the Administrative Agent; provided further that no L/C Issuer or Swing Line Lender shall be required to act as “issuing bank” or “swingline lender” under any such Incremental Revolving Credit Facility without its written consent. Each Incremental Revolving Credit Facility shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof unless such amount represents all the remaining availability under the aggregate principal amount of Incremental Revolving Credit Facilities set forth above. (ii) At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (~~it being understood~~ whereupon the Administrative Agent shall promptly make a copy of such notice available to each of the Lenders), request to effect one or more additional tranches of term loans hereunder (“Incremental Term Loans”) or increases in the aggregate amount of the Term Commitments of any existing Class, which shall take the form of an additional tranche of term loans hereunder (each such increase, a “Term Commitment Increase”; together with the Incremental Term Loans, the “Incremental Term Facilities”) from one or more Additional Term Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Term Facility Amendment, (A) no Event of Default shall result therefrom, (B) the aggregate principal amount of all Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes incurred after the Closing Date would not exceed (x) $500,000,000 plus (y) an additional amount to the extent that ~~any financial maintenance covenant is added~~ the Senior Secured First-Lien Net Leverage Ratio (treating all such Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes as Senior Secured First-Lien Indebtedness solely for purposes of calculating such Senior Secured First-Lien Net Leverage Ratio even if such Indebtedness would not otherwise constitute Senior Secured First-Lien Indebtedness) on a Pro Forma Basis after giving effect to the ~~benefit~~ incurrence of any such proposed Incremental Term ~~Loan~~ Facility and any related transactions (treating any proposed Incremental Revolving Credit Facilities and Additional Notes that are “revolving” in nature as fully drawn, but not including the proceeds of any proposed Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes in the amount of cash to be netted in calculating such ratio) would be less than or ~~Revolving Commitment Increase~~equal to 4.0:1.0 as of the end of the most recently ended Test Period, ~~no consent~~ (C) the Borrower shall be ~~required from~~ in compliance on a Pro Forma Basis with the ~~Administrative Agent or any Lender to~~ Financial Performance Covenant as of the ~~extent that~~ end of the most recent Test Period (regardless of whether such ~~financial maintenance covenant~~ Financial Performance Covenant is ~~also added for~~ applicable at such time), (D) the ~~benefit~~ maturity date of any ~~corresponding existing~~ such Incremental Term Facility shall not be earlier than the Term B Maturity Date, (E) the Weighted Average Life to Maturity of any such Incremental Term Facility shall not be shorter than the remaining Weighted Average Life to Maturity of the Term B Loans, (F) ~~and~~ the interest rate margins and, subject to ~~clauses~~ clause (~~b) and (c) above~~E), the amortization schedule ~~(if any)~~ for any Incremental Term Facility shall be determined by the Borrower and the Additional Term Lenders thereunder; provided that in the event that the Effective Yield for any Incremental Term Facility is higher than the Effective Yield for the Term B Loans by more than 50 basis points, then the Effective Yield for the Term B Loans shall be increased to the extent necessary so that such Effective Yield is equal to the Effective Yield for such Incremental Term Facility minus 50 basis points; provided, further, that, in determining the Effective Yield applicable to the Incremental Term Facility and the Term B Loans (x) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by Borrower to the Term B Lenders or any Additional Term Lenders in the initial primary syndication thereof (with OID being equated to interest based on assumed four-year life to maturity) shall be included, (y) customary arrangement or commitment fees payable to the Joint Bookrunners (or their Affiliates) in connection with this Agreement or to one or more arrangers (or their Affiliates) of any Incremental Term Facility shall be excluded and (z) if the Incremental Term Facility includes an interest rate floor greater than the interest rate floor applicable to the Term B Loans, such increased amount shall be equated to interest margin for purposes of determining whether an increase to the applicable interest margin for the Term B Loans shall be required, to the extent an increase in the interest rate floor in the Term B Loans would cause an increase in the interest rate then in effect, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term B Loans shall be increased by such increased amount and (G) any Incremental Term Facility Amendment entered into after the Closing Date shall be on the terms and pursuant to documentation to be determined by ~~Parent~~ the Borrower and the ~~lenders thereof~~Additional Term Lenders with the applicable Incremental Term Facilities; provided that to the extent such terms and documentation are not consistent with this Agreement (except to the extent permitted by clause (F) above), they shall be reasonably satisfactory to the Administrative Agent. Each Incremental Term Facility incurred after the Closing Date shall be in a minimum principal amount of $10,000,000 and, except with respect to the Term Commitment Increase, integral multiples of $1,000,000 in excess thereof unless such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Facilities set forth above. (ci) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount ~~and proposed terms~~ of the relevant Incremental ~~Term Loans or~~ Revolving Credit Loan, Revolving Credit Commitment ~~Increases.~~ Increase, Incremental Term ~~Loans may be made, and Revolving~~ Loan or Term Commitment ~~Increases may be provided, by any existing Lender or by any other bank or other financial institution~~ Increase. (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheldii) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of any Incremental ~~Term Loans and~~ Revolving Credit Loan or Revolving Credit Commitment ~~Increases~~ Increase incurred after the Closing Date shall become Commitments (or in the case of a any Revolving Credit Commitment Increase to be provided after the Closing Date by an existing Revolving Credit Lender, an increase in such Revolving Credit Lender’s ~~applicable~~ Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Credit Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional ~~Lender, if any,~~ Revolving Credit Lenders and the Administrative Agent. ~~The~~ Incremental Revolving Credit Loans and Revolving Credit Commitment Increases may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Credit Facility or, unless it agrees, be obligated to provide any Incremental Revolving Credit Loan or Revolving Credit Commitment Increase) or by any other Additional Revolving Credit Lender. An Incremental Revolving Credit Facility Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicableSection. The effectiveness of any Incremental Revolving Credit Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Revolving Credit Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Credit Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such ~~further conditions~~ Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Revolving Credit Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). (iii) Commitments in respect of any Incremental Term Facility shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as ~~Parent~~ appropriate, the other Loan Documents, executed by the Borrower, such Additional Term Lenders and the ~~applicable Lenders and Additional Lenders shall agree~~Administrative Agent. ~~The Borrowers~~ Incremental Term Facilities may ~~use~~ be provided, subject to the ~~proceeds~~ prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have any right to participate in any Incremental Term ~~Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall~~ Facility or, unless it agrees, be obligated to provide any Incremental Term ~~Loans~~ Loan or ~~Revolving~~ Term Commitment ~~Increases~~Increase thereunder) or by any other Additional Term Lender. An Incremental Term Facility Amendment may, without the consent of any other 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. The effectiveness of any Incremental Term Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Term Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it ~~so agrees~~being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Term Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). (di) Upon effectiveness of each ~~increase in the~~ Revolving Credit ~~Commitments~~ Commitment Increase pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Additional Revolving Credit Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase ~~Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and~~ (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.each

Appears in 2 contracts

Sources: Amendment and Restatement Agreement (Sabre Corp), Amendment and Restatement Agreement (Sabre Corp)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to add one or more ~~additional~~ tranches of term A loans (the “Incremental Term A Loans”) or term B loans (bthe “Incremental Term B Loans” and, together with the Incremental Term A Loans, the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or one or more increases in the Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “Incremental Facilities”); provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, no Default has occurred and is continuing or shall result therefrom, (ii) after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect to any Specified Transaction consummated in connection therewith, the Nexstar Borrower is in compliance (on a Pro Forma Basis) with the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio Financial Covenants as of the end of the most recent Test Period (as if the incurrence of such Incremental Facility had occurred on the first day of such Test Period) and (iii) the sum of (A) the aggregate principal amount of the Revolving Credit Commitments of any Facility (each such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto)Commitment, (iB) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Nexstar Revolving Credit Commitment, (C) all Incremental Facilities consisting of Incremental Revolving Commitments and Incremental Term ~~Loans~~ A Loans, and ~~the~~ (D) Nexstar Incremental Facilities consisting of Nexstar Incremental Revolving ~~Commitment Increases (other than~~Commitments and Nexstar Incremental Term A Loans, ~~for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16)~~ shall not exceed ~~the Maximum Incremental Facilities Amount~~$150,000,000. (b) ~~Any Revolving Commitment Increase~~ The Incremental Facilities are subject to the following terms and conditions: (i) each Incremental Facility shall ~~be on~~ have the same ~~terms~~ guarantees as, and ~~pursuant to~~ be secured on a pari passu basis by the same ~~documentation applicable~~ Collateral securing, the Obligations hereunder; (ii) no existing Lender will be required to ~~the Revolving Credit~~ participate in any such Incremental Facility without its consent; (~~including~~ iii) no Default would exist after giving effect thereto; (iv) the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The of any such Incremental Term B Loans (aincluding any Refinancing Term Loans) shall ~~rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature~~ be no earlier than the Maturity Date ~~with respect to~~ of the Term ~~Loans, (c) shall not have a shorter~~ B Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans; (v) in the case of Incremental Revolving Commitments, (dA) the maturity date of such Incremental Revolving Commitments shall be ~~entitled~~ the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to ~~share~~ the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility; (vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and ~~voluntary prepayments~~ pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a ~~ratable (or less than ratable, but in no event greater than ratable)~~ pro rata basis with the Revolving Credit Facility; (vii) the interest rate margins, the maturity date of any Incremental Term ~~Loans,~~ A Loans and (esubject to clauses (iv) ~~shall bear interest at rates~~ and ~~be entitled~~ (vi) above, as appropriate) amortization schedule applicable to ~~upfront fees as~~ any Incremental Term Loans or Incremental Revolving Facilities shall be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders~~lenders thereunder; ~~provided, however,~~ provided that if in the ~~All-In Yield~~ event that the total all in interest rate margins for any Incremental Term B Loans or any Incremental Revolving Facility (in each case, other than Refinancing Term Loans and Refinancing Revolving Commitments) that ~~are~~ is incurred ~~under this Section 2.14~~ on a or prior to the date that is ~~prior to~~ 18 months after the ~~twelve (12) month anniversary of~~ Closing Date are higher than the ~~Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to~~ interest rate margins for the Term B Loans or the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term B Loans or the Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term B Loans, or Incremental Revolving Facility, as the case may be, minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Term B Loans and the Term B Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B Loans or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any Incremental Term A Loans, Incremental Term B Loans or Incremental Revolving Facility shall be excluded, (B) original issue discount (“OID”) and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B Loans or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term B Loans or the Revolving Credit Facility, as applicable, shall be increased ~~so that~~ to the extent of such ~~excess~~ differential between interest rate floors; (viii) any Incremental Term A Loans, for purposes of prepayments, shall be ~~only 50 basis points. The~~ treated substantially the same as (and in any event no more favorably than) the Term B Loans; (ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans; (x) any Incremental Term Loans or any Incremental Revolving Facility shall ~~otherwise~~ be on terms and pursuant to documentation to be ~~determined by Parent~~determined; provided that, to the extent such terms and documentation are not consistent with the Term B Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (aiv), (vi), (vii), (viii) ~~through~~ and (eix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (~~it being understood~~ x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to the ~~extent that any~~ Intercreditor Agreement and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance ~~covenant~~ covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term B Loans); provided, however, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and (xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is ~~added for~~ not less than (A) $25,000,000 in the ~~benefit~~ case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving ~~Commitment Increase, no consent shall be required from the Administrative Agent~~ Facilities or ~~any Lender to the extent~~ Incremental Revolving Commitments; provided that such ~~financial maintenance covenant is also added for~~ amount may be less than the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c)~~ applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above~~, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans or Revolving Commitment Increases.~~ Loans, Incremental Term ~~Loans may be made~~Loan Increases, ~~and~~ Incremental Revolving ~~Commitment Increases may be provided~~Facilities and/or Incremental Revolving Commitments. Any additional bank, ~~by any~~ financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) all references to “the date of such ~~further conditions as Parent~~ Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date, (ii) the Incremental Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section 4.02(a) and (iii) to the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ extent the proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, the conditions in Section 4.02 may be subject to customary “SunGard” limitations). The proceeds of any Incremental Term Loans and ~~Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any~~ Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase Loan Increases will ~~automatically and without further act~~ be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender used only for general corporate purposes (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit CommitmentsPermitted Acquisitions), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 2 contracts

Sources: Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)

Incremental Credit Extensions. (a) ~~Parent may,~~ The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver~~ make a copy of such notice available to each of the Lenders), request ~~(a)~~ one or more additional tranches or, in consultation with the Administrative Agent, additions to an existing tranche of term loans (the “Incremental Term Loans”; the commitments thereunder, the “Incremental Term Loan Commitments”) or ~~(b)~~ one or more increases in the amount of the Revolving ~~Credit Commitments of~~ Commitment (any ~~Facility (each~~ such increase, a “Revolving Commitment Increase”; the commitments thereunder, the “Incremental Revolving Commitments” and, collectively, with the Incremental Term Loan Commitments, the “Incremental Commitments”); ~~provided,~~ provided that ~~upon~~ (i) after giving effect to the ~~effectiveness~~ making of ~~any Incremental Amendment referred to below and at the time that any~~ such Incremental Term Loans or the incurrence of any Revolving Commitment Increase, the aggregate principal amount of all Incremental Term Loans and Incremental Revolving Commitments incurred pursuant to this Section 2.19 (together with any Incremental Equivalent Debt incurred pursuant to Section 7.03(s) after the Closing Date) shall not exceed (x) $346,000,000 (provided that $35,000,000 of such amount under this clause (x) shall solely be available for Revolving Commitment Increases) plus (y) an unlimited additional amount, so long as on a Pro Forma Basis after the incurrence of such Incremental Term Loans and such Incremental Revolving Commitments (A) if such Incremental Loan ~~is made~~ ranks pari passu in right of security on the Collateral with the Obligations (~~and after giving effect thereto~~other than any Obligations in respect of other Incremental Loans or Refinancing Facilities secured on a junior lien basis to other Obligations), ~~(i) no Default or Event~~ the First Lien Leverage Ratio as of ~~Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for~~ the last day of the most recently ended Test Period does not exceed 3.90:1.00 and (B) if such Incremental Loan ranks junior in right of security on the Collateral to the Obligations (other than any Obligations in respect of other Incremental Loans or Refinancing Facilities secured on a junior lien basis to other Obligations), the Senior Secured Leverage Ratio as of the last day of the most recently ended Test Period does not exceed 3.90:1.00 (it being understood that (1) any Incremental Loan may be incurred under clause (y) prior to clause (x) and regardless of whether there is capacity under clause (x), (2) to the extent that both clause (x) and clause (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y), (3) any amounts incurred under clause (x), the Revolving Facility, Sections 7.03(e), 7.03(m), 7.03(r), 7.03(t), 7.03(u), 7.03(z), 7.03(bb), 7.03(s)(x) or 7.03(w), in each case, together with any amounts incurred to fund original issue discount (“OID”) and upfront fees, that is concurrently incurred with, or incurred in a single transaction or series of related transactions with, amounts under clause (y) will not count as Indebtedness for ~~which financial statements have been delivered pursuant~~ the purpose of calculating the First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, in clause (y) and (4) any portion of any Incremental Term Loans or any Incremental Revolving Commitments incurred in reliance on clause (x) may be reclassified, as the Borrower may elect from time to time, as incurred under clause (y) if the Borrower meets the applicable First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, under clause (y) at such time on a Pro Forma Basis (for purposes of clarity, with any such reclassification having the effect of increasing the Borrower’s ability to incur Indebtedness under clause (x) on and after the date of such reclassification by the amount of Indebtedness so reclassified)); provided, further, that for purposes of the calculation of the First Lien Leverage Ratio and the Senior Secured Leverage Ratio used in determining the availability of Incremental Term Loans or Incremental Revolving Commitments under this Section ~~6.01~~2.19(a), (i) any cash proceeds of any Incremental Term Loans or the Incremental Revolving Commitments, as applicable, then being incurred will not be netted for purposes of determining compliance with the First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, and (ii) the full amount of any Incremental Revolving Commitments then being incurred shall be deemed to be Indebtedness then outstanding (whether or not then incurred). Each tranche of Incremental Term Loans ~~and each Revolving Commitment Increase~~ shall be in an aggregate principal amount that is not less than $~~50 million~~ 5,000,000 (~~provided,~~ provided that such amount may be less than $~~50 million~~ 5,000,000 if such amount represents all remaining availability under the limit set forth in the ~~next~~ preceding sentence)~~. Notwithstanding anything to the contrary herein~~. (b) The terms, ~~the aggregate amount~~ provisions and documentation of the Incremental ~~Term Loans and the~~ Revolving ~~Commitment Increases~~ Commitments shall be identical (other ~~than~~than with respect to upfront fees, original issue discount or similar fees and, for the avoidance of doubt, ~~those established in respect of Extended Term Loans~~ any structuring, arrangement, underwriting or ~~Extended~~ other similar fees not shared with all lenders providing the applicable Incremental Revolving ~~Credit Commitments pursuant to Section 2.16~~Commitments) ~~shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable~~ to the Revolving ~~Credit Facility (including~~ Commitments existing hereunder on the ~~maturity~~ closing date ~~in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the~~ of such Incremental Revolving ~~Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase~~Commitments. The following terms shall apply to any Incremental Term Loans established pursuant to an Incremental Amendment: (i) such Incremental Term Loans (aA) shall rank pari passu ~~or junior~~ in right of payment ~~and of security~~ with ~~the Revolving Credit Loans and the~~ all other Term Loans, (bB) shall ~~not mature earlier than~~ be secured by the ~~Maturity Date~~ Collateral on a pari passu or junior basis with ~~respect to the~~ all other Term Loans, (cC) shall not ~~have~~ be guaranteed by any person other than a ~~shorter~~ Guarantor and (D) shall not be secured by any assets other than the Collateral, (ii) the maturity date of such Incremental Term Loans shall not be earlier than the Original Term Loan Maturity Date, (iii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be less than the remaining Weighted Average Life to Maturity of the then outstanding Initial Term Loans (provided that the effects of any scheduled amortization or prepayments made on the Initial Term Loans prior to the Increased Amount Date shall be disregarded), (iv) if such Incremental Term Loan ranks pari passu in right of security with the existing Term Loans, ~~(d) shall be entitled to share in mandatory and voluntary prepayments~~ such Incremental Term Loan may participate on a ~~ratable (~~pro rata basis or on a less than ~~ratable,~~ pro rata basis (but ~~in no event~~ not on a greater than ~~ratable~~pro rata basis) ~~basis with~~ in any mandatory prepayments under the ~~Term Loans~~Loan Documents, ~~and (e) shall bear interest at rates and be entitled to upfront fees~~ as ~~shall be determined by Parent and~~ specified in the applicable ~~new Lenders;~~ Incremental Amendment (provided, however, that if any Incremental Term Loan may participate on a greater than pro rata basis, on a pro rata basis or on a less than pro rata basis in any voluntary prepayments), (v) subject to clauses (ii) and (iii) above, the ~~All~~amortization schedule applicable to any Incremental Term Loan shall be determined by the Borrower and the lenders thereunder, (vi) the applicable all-~~In Yield for~~ in yield relating to any Incremental Term Loans ~~that are~~ incurred under ~~this~~ clause (y) of Section ~~2.14~~ 2.19(a) pursuant to such Incremental Amendment (each facility thereunder, an “Incremental Facility”), if such Incremental Term Loans are (A) secured on a pari passu basis with the Initial Term Loans and (B) made on or prior to the date that is ~~prior to~~ eighteen (18) months after the ~~twelve (12) month anniversary of the Amendment No. 2 Effective~~ Closing Date, shall not exceed the ~~All~~all-~~In Yield with respect~~ in yield applicable to the Initial Term Loans by more than ~~50 basis points, then~~ 0.50% per annum unless the ~~interest rate margins~~ all-in yield applicable to the Initial Term Loans ~~shall be~~ is increased so that the all-in yield applicable to the applicable Incremental Facility does not exceed the all-in yield applicable to the Initial Term Loans by more than 0.50% per annum; provided that, in determining the all-in yield applicable to the Initial Term Loans and the applicable Incremental Facility, (A) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Initial Term Loans or the applicable Incremental Facility in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if less, the remaining life to maturity of the applicable Incremental Facility), (B) structuring, arrangement, underwriting, ticking and commitment and other fees not shared with all lenders providing the Initial Term Loans or the applicable Incremental Facility, and, if applicable, consent fees for an amendment paid generally to consenting lenders, shall be excluded and (C) if the Adjusted LIBO Rate in respect of such Incremental Facility includes a floor in excess of 1.00%, or the Alternate Base Rate in respect of such Incremental Facility includes a floor in excess of 2.00%, such excess shall be ~~only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant~~ equated to ~~documentation to be determined by Parent; provided that,~~ interest margin for purposes of determining any increase to the ~~extent such terms and documentation are not consistent with~~ applicable all-in yield under the Initial Term Loans (except to the extent ~~permitted by clauses~~ such floor does not result in an increase in interest rate) and any increase in the all-in yield applicable to the Initial Term Loans required due to the application of such floor on any Incremental Facility shall be effected solely through an increase in (aor implementation of, as applicable) ~~through~~ such floor in respect of the Initial Term Loans, (evii) subject to clause (vi) above, any fees payable in connection with any such Incremental Term Loan shall be determined by the Borrower and the arrangers providing for such Incremental Term Loan and (viii) except as otherwise required or permitted above, all other terms of such Incremental Term Loans (other than (1) provisions applicable only to periods after the Latest Maturity Date of then-existing Term Loans (as of the date of incurrence of such Incremental Term Loans) and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms (which shall be determined by the Borrower)) are either (I) customary market terms for Indebtedness of such type at the time of incurrence (taken as a whole) (as determined in good faith by the Borrower) or (II) substantially identical to, or when taken as a whole, are not materially more restrictive with respect to the Restricted Group than the terms of the Term Loans (as of the date of incurrence of such Incremental Term Loans), ~~they shall be reasonably satisfactory~~ in each case under this clause (viii)(II), unless the then-existing Term Loans (other than any then-existing Term Loans secured on a junior basis to the ~~Administrative Agent~~ Incremental Term Loans) (as of the date of incurrence of the Incremental Term Loans) receive the benefit of such more favorable terms through the then Latest Maturity Date (for the avoidance of doubt, it ~~being~~ is understood that to the extent ~~that~~ any financial maintenance covenant is added for the benefit of ~~any~~ such Incremental Term ~~Loan or Revolving Commitment Increase~~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 the Term Loans (other than any ~~corresponding~~ then-existing Term ~~Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable~~ Loans secured on a junior basis to the Incremental Term Loans) then outstanding); provided that any Incremental Term Loan Facility secured on a junior basis to all other Term Loans shall be ~~determined by Parent and~~ subject to a Second Lien Intercreditor Agreement. Notwithstanding anything to the ~~lenders thereof~~contrary in this Agreement, to the extent the terms of any Incremental Term Loan or Incremental Revolving Commitment, as applicable, are favorable to the existing Lenders, such terms may be, in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of the existing Lenders of the applicable Class or Classes of Loans without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin relating to any existing Class to achieve “fungibility” with such existing Class of Loans. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ 2.19 shall set forth (i) the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment ~~Increases. Incremental Term Loans may be made~~Increase (each, ~~and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called~~ an “~~Additional Lender~~Incremental Loan”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date ~~of such increase, there are any Revolving Credit Loans under~~ on which the ~~applicable Facility outstanding, such Revolving Credit Loans shall on or prior~~ relevant increase is requested to become effective (the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments“Increased Amount Date”), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 2 contracts

Sources: Term Loan Amendment (Surgery Partners, Inc.), Credit Agreement (Surgery Partners, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower Representative may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to add one or more ~~additional~~ tranches of term A loans (the “Incremental Term A Loans”) or term B loans (bthe “Incremental Term B Loans” and, together with the Incremental Term A Loans, the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or one or more increases in the ~~amount of the~~ Revolving Credit Commitments ~~of any Facility~~ (~~each such increase~~the “Incremental Revolving Increases”; together with the Incremental Term Loans, a the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “~~Revolving Commitment Increase~~Incremental Facilities”); ~~provided,~~ provided that ~~upon the effectiveness of any Incremental Amendment referred to below and at the time~~ after giving Pro Forma Effect thereto (assuming that any such Incremental ~~Term Loan is made (~~Revolving Facilities or Incremental Revolving Increases are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect ~~thereto)~~to any Specified Transaction consummated in connection therewith, New Holdings is in compliance (~~i) no Default or Event of Default shall exist and (ii) Parent shall be in~~ on a Pro Forma ~~Compliance with Section 7.09 for~~ Basis) the Financial Covenant as of the end of the most ~~recently ended~~ recent Test Period ~~for which financial statements have been delivered pursuant to Section 6.01. Each tranche~~ (as if the incurrence of such Incremental ~~Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount~~ Facility had occurred on the first day of such Test Period); provided that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term ~~Loans~~ Loans, Incremental Term Loan Increases and the ~~Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended~~ Incremental Revolving Credit Commitments ~~pursuant to Section 2.16)~~ shall not exceed the ~~Maximum~~ sum of (A) (x) $400,000,000, plus (B) additional amounts so long as, at the time of issuance or incurrence thereof, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of eight consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans, Incremental Term Loan Increases or Incremental Revolving Increases, as applicable, available under such Incremental Facilities ~~Amount.~~had been outstanding on the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds of any such Incremental Loans, does not exceed 4.00:1.00 (or, on the Acquisition Effective Date, 5.25:1.00); (b) ~~Any Revolving Commitment Increase~~ The Incremental Facilities are subject to the following terms and conditions: (i) each Incremental Facility shall ~~be on~~ have the same ~~terms~~ guarantees as, and ~~pursuant to~~ be secured on a pari passu basis by the same ~~documentation applicable~~ Collateral securing, the Obligations hereunder; (ii) no existing Lender will be required to participate in any such Incremental Facility without its consent; (iii) at the time of each such request and upon the effectiveness of any Incremental Facility, no Event of Default shall have occurred and be continuing or shall occur as a result thereof; provided that in the case of any Incremental Facilities the proceeds of which are to be used to finance an acquisition permitted under this Agreement subject to customary “funds certain provisions”, (A) at the time of the execution and delivery of the purchase agreement related to such acquisition, no Event of Default shall have occurred and be continuing or shall occur as a result thereof and (B) upon the effectiveness of any Incremental Facility and the making of such Incremental Term Loan and/or Incremental Revolving ~~Credit Facility~~ Loan, no Specified Default shall have occurred and be continuing or shall occur as a result thereof; (~~including~~ iv) the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The of any such Incremental Term B Loans (aincluding any Refinancing Term Loans) shall ~~rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature~~ be no earlier than the Maturity Date ~~with respect to~~ of the Term ~~Loans, (c) shall not have a shorter~~ B Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans; (v) in the case of Incremental Revolving Increases, (dA) the maturity date of such Incremental Revolving Increases shall be ~~entitled~~ the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Increases shall require no scheduled amortization or mandatory commitment reduction prior to ~~share~~ the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Increases shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility; (vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and ~~voluntary prepayments~~ pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a ~~ratable (or less than ratable, but in no event greater than ratable)~~ pro rata basis with the Revolving Credit Facility; (vii) the interest rate margins, the maturity date of any Incremental Term ~~Loans,~~ A Loans and (esubject to clauses (iv) ~~shall bear interest at rates~~ and ~~be entitled~~ (vi) above, as appropriate) amortization schedule applicable to ~~upfront fees as~~ any Incremental Term Loans or Incremental Revolving Facilities shall be determined by ~~Parent~~ the Borrower Representative and the ~~applicable new Lenders~~lenders thereunder; ~~provided, however,~~ provided that if in the ~~All-In Yield~~ event that the total all in interest rate margins for any Incremental Term B Loans ~~that are incurred under this Section 2.14 on a date~~ or any Incremental Revolving Facility (in each case, other than Refinancing Term Loans and Refinancing Revolving Commitments) that is ~~prior to~~ incurred are higher than the ~~twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to~~ interest rate margins for the Term B Loans or the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term B Loans or the Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term B Loans, or Incremental Revolving Facility, as the case may be, minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Term B Loans and the Term B Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B Loans or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any Incremental Term A Loans, Incremental Term B Loans or Incremental Revolving Facility shall be excluded, (B) original issue discount (“OID”) and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B Loans or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term B Loans or the Revolving Credit Facility, as applicable, shall be increased ~~so that~~ to the extent of such ~~excess~~ differential between interest rate floors; (viii) any Incremental Term A Loans, for purposes of prepayments, shall be ~~only 50 basis points. The~~ treated substantially the same as (and in any event no more favorably than) the Term B Loans; (ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans; (x) any Incremental Term Loans or any Incremental Revolving Facility shall ~~otherwise~~ be on terms and pursuant to documentation to be determined ~~by Parent~~(and collectively with any Incremental Facilities Amendment (as defined below), the “Incremental Facilities Documentation”); provided that, to the extent such terms and documentation are not consistent with the Term A Loans, Term B Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (aiv), (vi), (vii), (viii) ~~through~~ and (eix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (~~it being understood~~ x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) shall reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to the ~~extent that any~~ Intercreditor Agreement and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance ~~covenant~~ covenants), taken as a whole, that are materially less advantageous to the Borrower Representative and its Restricted Subsidiaries than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term A Loans and Term B Loans); provided, however, that a certificate of a Responsible Officer of the Borrower Representative delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower Representative has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower Representative within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and (xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is ~~added for~~ not less than (A) $25,000,000 in the ~~benefit~~ case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving ~~Commitment Increase, no consent shall be required from the Administrative Agent~~ Facilities or ~~any Lender to the extent~~ Incremental Revolving Increases; provided that such ~~financial maintenance covenant is also added for~~ amount may be less than the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c)~~ applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above~~, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~. (c) Each notice from ~~Parent~~ the Borrower Representative pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans or~~ Loans, Incremental Term Loan Increases, Incremental Revolving ~~Commitment~~ Facilities and/or Incremental Revolving Increases. ~~Incremental Term Loans may be made~~Any additional bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower Representative and the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable Borrower~~Borrower Representative, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) all references to “the date of such ~~further conditions as Parent~~ Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date, (ii) the Incremental Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section 4.02(a) and (iii) to the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ extent the proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, the conditions in Section 4.02 may be subject to customary “SunGard” limitations). The proceeds of any Incremental Term Loans and ~~Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any~~ Incremental Term ~~Loans or Revolving Commitment Increases, unless it so agrees.~~ Loan Increases will be used only for general corporate purposes (d) including Permitted Acquisitions). Upon each increase in the ~~Revolving Credit~~ Aggregate Commitments pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving ~~Commitment~~ Increase (each a “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Letters of Credit and (iiB) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 2 contracts

Sources: Incremental Facility Amendment (Media General Inc), Credit Agreement (Media General Inc)

Incremental Credit Extensions. (a) ~~Parent may,~~ The Borrower may at any time or from time to time after the ~~Closing~~ Restatement Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans (the “Incremental Term Loans”) or (b) one or more increases in the amount of the Revolving Credit Commitments ~~of any Facility~~ (each such increase, a “Revolving Credit Commitment Increase”)~~; provided~~, provided that both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below (i) all representations and ~~at the time that any such Incremental Term Loan is made (~~warranties in Section 4 shall be true and ~~after giving effect thereto)~~correct in all material respects, (iii) no Default or Event of Default shall exist or would result therefrom and (iiiii) ~~Parent~~ the pro forma Consolidated Net Senior Secured Leverage Ratio of the Borrower and its Subsidiaries after giving effect to such Incremental Term Loans or Revolving Credit Commitment Increase shall not be ~~in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant~~ greater than 4.50 to ~~Section 6.01.~~ 1.00. (b) Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is a whole multiple of $5,000,000 which is not less than $~~50 million~~ 25,000,000 (~~provided,~~ provided that such amount may be less than $~~50 million~~ 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence)) and there shall be not more than four requests for Incremental Term Loans or Revolving Credit Commitment Increases. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Term Loans and the aggregate amount of the Revolving Credit Commitment Increases ~~(other than, for the avoidance~~ shall not exceed $160,000,000 less any amounts of ~~doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments~~ Consolidated Senior Secured Debt incurred pursuant to Section ~~2.16) shall not exceed the Maximum Incremental Facilities Amount~~7.2(p)(ii)(B)(x). (bc) ~~Any~~ The Incremental Term Loans and Revolving ~~Commitment Increase shall be on the same terms and~~ Credit Loans made pursuant ~~to the same documentation applicable~~ to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment ~~Increase. The Incremental Term Loans~~ Increases (a) shall rank pari passu ~~or junior~~ in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) in the case of Incremental Term Loans, shall not mature earlier than the Term Loan Maturity Date or have a weighted average life which is shorter than the than the remaining average life of the Term Loans and (c) except as set forth above, shall be treated substantially the same as or less favorably than the Term Loans or the Revolving Credit Loans, as the case may be (in each case, including with respect to ~~the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in~~ mandatory and voluntary prepayments ~~on a ratable (or less than ratable~~and voting rights), but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, provided that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) rates applicable to the Incremental Term Loans shall be determined by ~~Parent~~ the Borrower and the lenders ~~thereof~~thereof so long as the applicable margin with respect to such Incremental Term Loans is not more than 0.25% higher than the Applicable Margin for the Term Loan Facility. (cd) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ 2.25 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Credit Commitment Increases. Incremental Term Loans may be made, and Revolving Credit Commitment Increases may be provided, by any ~~existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an~~ “Additional Lender”)~~; provided~~, provided that the Administrative ~~Agent, each Swing Line Lender and each L/C Issuer~~ Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s ~~making such Incremental Term Loans or~~ providing any such Revolving Credit Commitment Increases if such consent would be required under Section ~~10.06(b)~~ 10.1 for an assignment of Loans or ~~Revolving Credit~~ Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Credit Commitment Increases shall become Commitments (or in the case of a Revolving Credit Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ 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 Administrative Agent and ~~Parent~~ the Borrower, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable2.25. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 5.2 and such ~~further~~ other conditions as ~~Parent and~~ the ~~applicable Lenders and Additional Lenders~~ parties thereto shall agree. The ~~Borrowers may~~ Borrower will use the proceeds of the Incremental Term Loans and the Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Credit Commitment Increases, unless it so agrees~~. (d)~~ . Upon each increase in the Revolving Credit Commitments pursuant to this Section ~~2.14~~2.25, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”)) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans ~~under the applicable Facility~~ outstanding, ~~such~~ the Revolving Credit ~~Loans~~ Lenders (including the Additional Lenders) shall ~~on or prior to~~ make such payments as directed by the ~~effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase~~ Administrative Agent in ~~Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ order that the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred~~ are held by ~~any Lender~~ the Revolving Credit Lenders (including Additional Lenders) ratably in accordance with ~~Section 3.05.~~ the increased Revolving Credit Commitments (and interest and other payments shall be adjusted accordingly). (e) The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to ~~the immediately preceding sentence. (e) Notwithstanding anything to the contrary in~~ this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis2.25. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 2 contracts

Sources: Credit Agreement, Credit Agreement (National CineMedia, LLC)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to add one or more additional tranches of term loans (the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or ~~(b)~~ one or more increases in the Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities incurred after the Closing Date (other than Refinancing Term Loans and Refinancing Revolving Commitments), shall not exceed the sum of (i) $80,000,000 plus (ii) the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder or any ~~Facility~~ reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder shall not increase the calculation of the amount under this clause (~~each such increase~~ii)) plus (iii) unlimited additional Incremental Facilities so long as, ~~a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time~~ after giving Pro Forma Effect thereto (assuming that any such Incremental ~~Term Loan is made (~~Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect ~~thereto~~to any Specified Transaction consummated in connection therewith and all other appropriate Pro Forma Adjustments, the First Lien Net Leverage Ratio does not exceed 4:25:1.00 (clauses (i), (ii) and (iii), collectively, the “Incremental Facilities Cap”). (b) The Incremental Facilities are subject to the following terms and conditions: (i) each Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Obligations hereunder; (ii) no existing Lender will be required to participate in any such Incremental Facility without its consent; (iii) no Default or Event of Default ~~shall~~ would exist ~~and (ii) Parent shall be~~ after giving effect thereto, subject to customary “sungard” or certain fund conditionality in ~~Pro Forma Compliance with Section 7.09 for~~ the ~~most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche~~ case of Incremental ~~Term Loans and each Revolving Commitment Increase shall be~~ Facilities issued in ~~an aggregate principal amount that is not less than $50 million (provided~~connection with a permitted acquisition or similar investments, ~~that~~ if agreed by the Lenders providing such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount.Facility; (biv) ~~Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including~~ the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The of any Incremental Term Loans (aother than Incremental Term Loans where the amortization of such Incremental Term Loans is greater than 1.0% per year (“Incremental Term A Loans”)) shall ~~rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature~~ be no earlier than the Maturity Date ~~with respect to~~ of the Term B Loans, ~~(c) shall not have a shorter~~ and the Weighted Average Life to Maturity of such Incremental Term Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans; (v) [reserved]; (vi) in the case of (A) Incremental Revolving Commitments, ~~(d)~~ the maturity date of such Incremental Revolving Commitments shall be ~~entitled~~ the same as the Maturity Date of the Revolving Credit Facility, such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to ~~share in mandatory~~ the Maturity Date of the Revolving Credit Facility and ~~voluntary prepayments~~ the Incremental Revolving Commitments shall be on ~~a ratable~~ the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility and (B) Incremental Term Loan Increases, the maturity date of such Incremental Term Loan Increases shall be the same as the Maturity Date of the applicable Class of Term Loans or ~~less than ratable, but in no event greater than ratable) basis with the~~ Incremental Term Loans, and such Incremental Term Loan Increases shall be on the exact same terms and pursuant to the exact same documentation applicable to the applicable Class of Term Loans or Incremental Term Loans; (evii) in the case of an Incremental Revolving Facility, the maturity date of such Incremental Revolving Facility shall ~~bear~~ be no earlier than the Maturity Date of the Revolving Credit Facility, such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, the Incremental Revolving Facility shall be on substantially the same terms and pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and borrowings and repayments under the Incremental Revolving Facility shall be made on a pro rata basis with the Revolving Credit Facility; (viii) the interest ~~at rates~~ rate margins and ~~be entitled~~ (subject to ~~upfront fees~~ clauses (iv), (v) and (vii), as appropriate) amortization schedule applicable to any Incremental Term Loans or Incremental Revolving Facilities shall be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders~~lenders thereunder; ~~provided, however,~~ provided that if in the ~~All-In Yield~~ event that the interest rate margins for any Incremental Term Loans (other than Incremental Term A Loans) that are incurred ~~under this Section 2.14 on a date that is prior to~~ during the ~~twelve~~ first eighteen (1218) ~~month anniversary of~~ months after the ~~Amendment No. 2 Effective Date, shall exceed~~ Closing Date are higher than the ~~All-In Yield with respect to~~ interest rate margins for the Term B Loans by more than (in any case) 50 basis points, then the interest rate margins for the Term B Loans shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term Loans minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Term Loans and the Term B Loans, (x) customary arrangement or commitment fees payable to the Lead Arrangers (or their affiliates) in connection with the Term B Loans or to one or more arrangers (or their affiliates) of any Incremental Term Loans shall be excluded, (y) original issue discount (“OID”) and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (z) if the Incremental Term Loans include an interest rate floor greater than the applicable interest rate floor under the Term B Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term B Loans shall be increased ~~so that~~ to the extent of such ~~excess~~ differential between interest rate floors; (ix) any Incremental Term Loans, for purposes of prepayments, shall be ~~only 50 basis points. The~~ treated substantially the same as (or no more favorably than) the Term B Loans; (x) the net proceeds of any Incremental Term A Loans shall be used solely to prepay Term Loans; (xi) any Incremental Term Loans or any Incremental Revolving Facility shall ~~otherwise~~ be on terms and pursuant to documentation to be ~~determined by Parent~~determined; provided that, to the extent such terms and documentation are not consistent with the Term B Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by ~~clauses~~ clause (~~a) through~~ iv), (ev), (vii), (viii), (ix), or (x) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (xi), (A) the terms and conditions of such Refinancing Term Loans and Refinancing Revolving Commitments (excluding pricing and optional prepayment or redemption terms) do not contain covenants (including financial maintenance covenants) or events of default, taken as a whole, that are materially more restrictive than (or in addition to) those contained in this Agreement (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the applicable facility existing at the time of such refinancing) (it being understood that to the extent ~~that~~ any financial maintenance covenant is added for the benefit of ~~any Incremental Term Loan or Revolving Commitment Increase~~such refinancing indebtedness, 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~~facility) (as determined by the Borrower in good faith); and (xii) each Incremental Facility shall be in an integral multiple of $1,000,000 and ~~subject to clauses (b) and (c) above,~~ be in an aggregate principal amount that is not less than $10,000,000 in the ~~amortization schedule (if any) applicable to the~~ case of any Incremental Term Loans ~~shall~~ or Incremental Term Loan Increases or $5,000,000 in the case of any Incremental Revolving Facilities or Incremental Revolving Commitments; provided that such amount may be ~~determined by Parent and~~ less than the ~~lenders thereof~~applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans or Revolving Commitment Increases.~~ Loans, Incremental Term ~~Loans may be made~~Loan Increases, ~~and~~ Incremental Revolving ~~Commitment Increases may be provided~~Facilities and/or Incremental Revolving Commitments. Any additional bank, ~~by any~~ financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to provide the applicable Incremental Facility shall be reasonably satisfactory to the Borrower and, to the extent the Administrative Agent would have a consent right to an assignment to such Person under Section 10.07, the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such ~~further conditions as Parent~~ Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) the ~~applicable Lenders~~ Incremental Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section 4.02(a) and ~~Additional Lenders shall agree. The Borrowers may use~~ (z) to the extent the proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, the conditions in Section 4.02 may be subject to customary “SunGard” limitations (or, for an acquisition of a foreign entity, “certain funds” limitations)). The proceeds of any Incremental Term Loans and ~~Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any~~ Incremental Term ~~Loans or Revolving Commitment Increases~~Loan Increases will be used for general corporate purposes (including Permitted Acquisitions, ~~unless it so agrees. (d)~~ Investments, Restricted Payments and Capital Expenditures. Upon each increase in the Revolving Credit Commitments pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment ~~Increase~~ (each a “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding ~~(i)~~ participations hereunder in Letters of Credit ~~and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender)~~ will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 2 contracts

Sources: Credit Agreement (Phibro Animal Health Corp), Credit Agreement (Phibro Animal Health Corp)

Appears in 2 contracts

Sources: Revolving Credit Agreement (IASIS Healthcare LLC), Revolving Credit Agreement (IASIS Healthcare LLC)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to add one or more ~~additional~~ tranches of term A loans (the “Incremental Term A Loans”) or term B loans (bthe “Incremental Term B Loans” and, together with the Incremental Term A Loans, the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or one or more increases in the Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “Incremental Facilities”); provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, no Default has occurred and is continuing or shall result therefrom, (ii) after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect to any Specified Transaction consummated in connection therewith, the Borrower is in compliance (on a Pro Forma Basis) with the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio Financial Covenants as of the end of the most recent Test Period (as if the incurrence of such Incremental Facility had occurred on the first day of such Test Period) and (iii) the sum of (A) the aggregate principal amount of the Revolving Credit Commitments of any Facility (each such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto)Commitment, (iB) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Mission Revolving Credit Commitment, (C) all Incremental Facilities consisting of Incremental Revolving Commitments and Incremental Term ~~Loans~~ A Loans, and ~~the~~ (D) Mission Incremental Facilities consisting of Mission Incremental Revolving ~~Commitment Increases (other than~~Commitments and Mission Incremental Term A Loans, ~~for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16)~~ shall not exceed ~~the Maximum Incremental Facilities Amount~~$150,000,000. (b) ~~Any Revolving Commitment Increase~~ The Incremental Facilities are subject to the following terms and conditions: (i) each Incremental Facility shall ~~be on~~ have the same ~~terms~~ guarantees as, and ~~pursuant to~~ be secured on a pari passu basis by the same ~~documentation applicable~~ Collateral securing, the Obligations hereunder; (ii) no existing Lender will be required to ~~the Revolving Credit~~ participate in any such Incremental Facility without its consent; (~~including~~ iii) no Default would exist after giving effect thereto; (iv) the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The of any such Incremental Term B Loans (aincluding any Refinancing Term Loans) shall ~~rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature~~ be no earlier than the Maturity Date ~~with respect to~~ of the Term ~~Loans, (c) shall not have a shorter~~ B Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans; (v) in the case of Incremental Revolving Commitments, (dA) the maturity date of such Incremental Revolving Commitments shall be ~~entitled~~ the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to ~~share~~ the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility; (vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and ~~voluntary prepayments~~ pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a ~~ratable (or less than ratable, but in no event greater than ratable)~~ pro rata basis with the Revolving Credit Facility; (vii) the interest rate margins, the maturity date of any Incremental Term ~~Loans,~~ A Loans and (esubject to clauses (iv) ~~shall bear interest at rates~~ and ~~be entitled~~ (vi) above, as appropriate) amortization schedule applicable to ~~upfront fees as~~ any Incremental Term Loans or Incremental Revolving Facilities shall be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders~~lenders thereunder; ~~provided, however,~~ provided that if in the ~~All-In Yield~~ event that the total all in interest rate margins for any Incremental Term B Loans or any Incremental Revolving Facility (in each case, other than Refinancing Term Loans and Refinancing Revolving Commitments) that ~~are~~ is incurred ~~under this Section 2.14~~ on a or prior to the date that is ~~prior to~~ 18 months after the ~~twelve (12) month anniversary of~~ Closing Date are higher than the ~~Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to~~ interest rate margins for the Term B Loans or the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term B Loans or the Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term B Loans, or Incremental Revolving Facility, as the case may be, minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Term B Loans and the Term B Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B Loans or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any Incremental Term A Loans, Incremental Term B Loans or Incremental Revolving Facility shall be excluded, (B) original issue discount (“OID”) and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B Loans or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term B Loans or the Revolving Credit Facility, as applicable, shall be increased ~~so that~~ to the extent of such ~~excess~~ differential between interest rate floors; (viii) any Incremental Term A Loans, for purposes of prepayments, shall be ~~only 50 basis points. The~~ treated substantially the same as (and in any event no more favorably than) the Term B Loans; (ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans; (x) any Incremental Term Loans or any Incremental Revolving Facility shall ~~otherwise~~ be on terms and pursuant to documentation to be ~~determined by Parent~~determined; provided that, to the extent such terms and documentation are not consistent with the Term B Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (aiv), (vi), (vii), (viii) ~~through~~ and (eix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (~~it being understood~~ x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to the ~~extent that any~~ Intercreditor Agreement and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance ~~covenant~~ covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term B Loans); provided, however, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and (xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is ~~added for~~ not less than (A) $25,000,000 in the ~~benefit~~ case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving ~~Commitment Increase, no consent shall be required from the Administrative Agent~~ Facilities or ~~any Lender to the extent~~ Incremental Revolving Commitments; provided that such ~~financial maintenance covenant is also added for~~ amount may be less than the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c)~~ applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above~~, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans or Revolving Commitment Increases.~~ Loans, Incremental Term ~~Loans may be made~~Loan Increases, ~~and~~ Incremental Revolving ~~Commitment Increases may be provided~~Facilities and/or Incremental Revolving Commitments. Any additional bank, ~~by any~~ financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Intermediate Parent, the Ultimate Parent, the Borrower, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) all references to “the date of such ~~further conditions as Parent~~ Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date, (ii) the Incremental Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section 4.02(a) and (iii) to the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ extent the proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, the conditions in Section 4.02 may be subject to customary “SunGard” limitations). The proceeds of any Incremental Term Loans and ~~Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any~~ Incremental Term ~~Loans or Revolving Commitment Increases, unless it so agrees.~~ Loan Increases will be used only for general corporate purposes (d) including Permitted Acquisitions). Upon each increase in the ~~Revolving Credit~~ Aggregate Commitments pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (each a “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Letters of Credit and (iiB) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 2 contracts

Sources: Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)

Incremental Credit Extensions. (a) ~~Parent may, at any time or from time to time after the Closing Date, by~~ Upon notice to the Administrative ~~Agent~~ Agent, the Borrower may request Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments (~~whereupon~~ each, an “Incremental Facility”) pursuant to any Incremental Facility Amendment; provided, that after giving effect to any such addition, the ~~Administrative Agent~~ aggregate amount of all additional Term Loan Commitments and Incremental Revolving Credit Commitments that have been added pursuant to this Section 2.16(a) shall ~~promptly deliver a copy to each~~ not exceed the Incremental Cap. Each such addition under this Section 2.16 shall be in an aggregate amount of at least $5,000,000. (b) Any loans made in respect of any such additional Term Loan Commitments may be made, at the option of the ~~Lenders)~~Borrower, ~~request~~ either by (ai) ~~one~~ increasing the Term Loans with the same terms (including pricing) as the existing Term Loans, or ~~more additional tranches~~ (ii) creating a new tranche of ~~term~~ terms loans (any such increase or tranche, the “Incremental Term Loans”); provided, that any Incremental Term Loan other than Customary Term A Loans, Customary Bridge Loans or the Inside Maturity Amount, (A) or shall not mature prior to the Latest Term Loan Maturity Date on the date of incurrence of such Incremental Term Loans and (bB) the Weighted Average Life to Maturity of any Incremental Term Loan shall be no less than the Weighted Average Life to Maturity of such latest maturing Tranche of Term Loans. (c) Any such incremental Revolving Credit Commitments (the “Incremental Revolving Credit Commitments”) may be made by adding one or more ~~increases in~~ new tranches of Revolving Credit Commitments and/or increasing the aggregate amount of the Revolving Credit Commitments of any ~~Facility (each such increase, a “Revolving Commitment Increase”)~~existing Tranche; provided, that ~~upon~~ no Incremental Revolving Credit Commitments may have a final maturity date earlier than (or require scheduled amortization or mandatory commitment reductions prior to) the ~~effectiveness~~ Latest Revolver Maturity Date. ▇▇▇▇:\98106221\28\78831.0005 (d) Except as otherwise permitted herein (including with respect to currency, pricing (including any “MFN” or other pricing term), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts, maturity and amortization (subject to clauses (b) and (c) above with respect to maturity and amortization)): (i) the terms of any Incremental ~~Amendment referred~~ Term Loan, if not substantially consistent with the terms of any then-outstanding Term Facility, must be reasonably satisfactory to ~~below~~ the Administrative Agent; it being understood that (A) any Incremental Term Loan may provide for the ability to participate (1) with respect to any voluntary prepayment, on a pro rata basis, greater than pro rata basis, or less than a pro rata basis with the then-outstanding Term Facility and at (2) with respect to any mandatory prepayment, on a pro rata basis (to the ~~time that~~ extent such Incremental Term Loan is secured on a pari passu basis with the Initial Term Loans) or less than a pro rata basis with the then-outstanding Term Facility (and on greater than a pro rata basis with respect to any prepayment of any such Incremental Term Loan ~~is made~~ with the proceeds of any Refinancing Term Loan Facility, issuance of Credit Agreement Refinancing Indebtedness or any Incremental Term Loan incurred in reliance on clause (~~and after giving effect thereto~~b) of the definition of “Incremental Cap”), (iB) ~~no Default~~ (I) terms not substantially consistent with any then-outstanding Term Facility which are applicable only after the Latest Term Loan Maturity Date, (II) terms contained in such Incremental Term Loan that are, taken as a whole, more favorable to the lenders or ~~Event~~ the agent of ~~Default shall exist~~ such Incremental Term Loan than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Lenders under the Term Facility or, as applicable, the Administrative Agent, (III) terms contained in such Incremental Term Loan that (taken as a whole) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith) and (iiIV) ~~Parent shall~~ terms that are, taken as a whole, in the good faith determination of the Borrower, not more favorable to the lenders or agents of such Incremental Term Loan than those contained in the Credit Documentation, in each case will be ~~in Pro Forma Compliance with Section 7.09~~ deemed to be satisfactory to the Administrative Agent, (C) any Incremental Term Loan that consists of Customary Term A Loans may include one or more financial maintenance covenants that do not apply for the ~~most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche~~ benefit of ~~Incremental~~ any Lender that does not hold such “Customary Term A Loans and ~~each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million~~ (~~provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding~~ D) notwithstanding anything to the contrary herein, ~~the aggregate amount of the~~ any Incremental Term ~~Loans~~ Loan may be structured as a “delayed draw” facility with such conditions to any borrowing thereunder as the Borrower and the ~~Revolving Commitment Increases~~ relevant lenders may agree; and (~~other than, for~~ ii) the ~~avoidance~~ terms of ~~doubt, those established in respect of Extended Term Loans or Extended~~ any Incremental Revolving Credit ~~Commitments pursuant to Section 2.16) shall~~ Commitment, if not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not substantially consistent with the ~~Term Loans (except to~~ terms of the ~~extent permitted by clauses (a) through (e) above)~~then-existing Revolving Credit Facility, ~~they shall~~ must be reasonably satisfactory to the Administrative Agent (it being understood that (A) any Incremental Facility may provide for the ability to participate with respect to (1) borrowings on a pro rata basis or non-pro rata basis with other then-outstanding Revolving Credit Facilities, (2) any voluntary prepayment on a pro rata basis or non-pro rata basis with other then-outstanding Revolving Credit Facilities and (3) any permanent repayment and/or termination of revolving commitments on a pro rata basis or non-pro rata basis with any then-outstanding Revolving Credit Facility (or, in any case, on a greater than pro rata basis to the extent such revolving commitments are terminated in full and refinanced or replaced with a Refinancing Revolving Facility or an Incremental Facility implemented in reliance on clause (b) of the definition of “Incremental Cap”) and (B) (1) terms not substantially consistent with any then-existing Revolving Credit Commitments which are applicable only after the Latest Revolver Maturity Date, (2) terms contained in such Incremental Facility that ~~any financial maintenance covenant is added~~ are more favorable to the lenders or the agent of such Incremental Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Lenders under the applicable Revolving Credit Facility or, as applicable, the Administrative Agent, (3) terms contained in such Incremental Facility that (taken as a whole) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith), (4) terms contained in such Incremental Facility that are, taken as a whole, in the good faith determination of the Borrower, not more favorable to the lenders or agent of such Incremental Facility than those contained in the Loan Documents and (5) any condition to any extension of credit under any Incremental Facility, in each case will be deemed to be satisfactory to the Administrative Agent. (e) The currency, pricing (including any “MFN” or other pricing term), interest rate margins, rate floors, fees, premiums (including any prepayment premium), and funding discount applicable to any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by ~~Parent~~ the Borrower and the lender or lenders ~~thereof.~~ providing such Incremental Term Loan; provided, that (ci) ~~Each notice from Parent pursuant~~ in the case of any Incremental Term Loans that constitutes MFN Indebtedness, the interest rate margin (excluding, for the avoidance of doubt, any original issuance discount or ▇▇▇▇:\98106221\28\78831.0005 fees payable in connection therewith) payable applicable thereto may not be more than 0.50% per annum higher than the Applicable Margin that is applicable to the Initial Term Loans, unless the Applicable Margin (and/or, as provided in the following clause (ii), the Alternate Base Rate floor or Term SOFR floor) with respect to the Initial Term Loans is adjusted, in each case, such that the Applicable Margin in respect of such Initial Term Loans is not more than 0.50% per annum less than the interest rate margin with respect to such Incremental Term Loan (it being understood for purposes of this ~~Section 2.14 shall set forth~~ clause (i) that if such Incremental Term Loan or the ~~requested amount and proposed terms~~ Initial Term Loan includes a Term SOFR floor that is in effect with respect to such Incremental Term Loan or the Initial Term Loans, as applicable, on the date of incurrence of the relevant Incremental Term ~~Loans~~ Loan, the excess amount of each such floor over Term SOFR will be equated to interest rate margin) and (B) any increase in the Applicable Margin applicable to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or Term SOFR floor on any Incremental Term Loan may, at the election of the Borrower, be effected solely through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or Term SOFR floor applicable to such Initial Term Loan (this proviso, the “MFN Provision”). (f) The Borrower may invite any Lender or any additional Eligible Assignees to become Term Lenders or Revolving Credit Lenders. No Lender will be obligated to provide all or any portion of any Incremental Facility and the determination to provide such commitment shall be within the sole and absolute discretion of such Lender. Any failure by a Lender to respond to any such invitation shall not be deemed an acceptance or agreement to provide such Incremental Facility. (g) If any Term Loan Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Commitments Effective Date”) and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower and the lenders providing such Incremental Facility of the final allocation thereof and the Incremental Commitments Effective Date. The conditions to effectiveness of any Incremental Facility will be as agreed among the Borrower and the lenders providing such Incremental Facility. (h) On each Incremental Commitments Effective Date, (i) each Lender or Eligible Assignee which is providing an additional Term Loan Commitment ~~Increases. Incremental~~ (A) shall become a “Term ~~Loans may be made~~Lender” for all purposes of this Agreement and the other Loan Documents, and ~~Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution~~ (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheldB) ~~to such Lender’s or Additional Lender’s making~~ unless such Incremental Term ~~Loans~~ Loan is structured as a delayed draw term loan, shall make an Incremental Term Loan to the Borrower in a principal amount equal to such additional Term Loan Commitment, and such Incremental Term Loan shall be deemed a “Term Loan” for all purposes of this Agreement and the other Loan Documents and (ii) each Lender or Eligible Assignee which is providing ~~such~~ an Incremental Revolving Credit Commitment ~~Increases if such consent would be required under Section 10.06(b~~shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents with a Revolving Credit Commitment. (i) ~~for an assignment~~ (i) any Incremental Facility may rank pari passu with or junior to any then-existing Tranche of Term Loans or Revolving Credit Commitments, as applicable, ~~to such Lender~~ in right of payment and/or security or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders unsecured (and to ~~establish any tranche~~ the extent the relevant Incremental Facility is secured on a junior lien basis or subordinated in right of ~~Incremental Term Loans as an independent Class or Facility~~payment, ~~as applicable. The effectiveness of any Incremental Amendment~~ it shall be subject to ~~such further conditions as Parent~~ an Acceptable Intercreditor Agreement) and (ii) no Incremental Facility may be (x) guaranteed by any Subsidiary that is not a Loan Party (it being understood and agreed that the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ obligations of any Subsidiary with respect to any escrow arrangement into which the proceeds of ~~the~~ any Incremental Term ~~Loans~~ Loan are deposited shall not constitute a guarantee by any Subsidiary that is not a Loan Party) or (y) secured by any asset of the Borrower or any Subsidiary that does not constitute Collateral; it being understood that any Incremental Facility that is funded into Escrow pursuant to customary (in the good faith determination of the Borrower) escrow arrangements may be secured by the applicable funds and ~~Revolving Commitment Increases~~ related assets held in Escrow (and the proceeds thereof) until the date on which such funds are released from Escrow. (j) The proceeds of any Incremental Facility may be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes and any ~~purpose~~ other use not prohibited by this Agreement~~. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees~~. (dk) Upon ~~each increase in~~ the implementation of any Incremental Revolving Credit ~~Commitments~~ Commitment pursuant to this Section ~~2.14~~2.16: (i) if such Incremental Revolving Credit Commitment establishes a Revolving Credit Commitment of the same Tranche as any then-existing Tranche of Revolving Credit Commitments, (aA) each Revolving Credit Lender immediately prior to such increase will ▇▇▇▇:\98106221\28\78831.0005 automatically and without further act be deemed to have assigned to each relevant Lender ~~providing a portion of the~~ with respect to such Incremental Revolving ~~Commitment Increase (each a “Revolving Commitment Increase Lender”)~~Credit Commitment, and each relevant Lender with respect to such Incremental Revolving Credit Commitment ~~Increase Lender~~ will automatically and without further act be deemed to have assumed ~~(in the case of an increase to the Revolving Credit Facility only),~~ a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each ~~such~~ deemed assignment and assumption of such participations, ~~the percentage~~ all of the ~~aggregate outstanding~~ Revolving Credit Lenders’ (iincluding each Lender under such Incremental Revolving Credit Commitment) participations hereunder in Letters of Credit shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.16) and (iiB) ~~participations hereunder in Swing Line Loans held by each~~ the existing Revolving Credit ~~Lender~~ Lenders of the applicable Tranche shall assign Revolving Credit Loans to certain other Revolving Credit Lenders of such Tranche (including ~~each~~ the Revolving Credit Lenders providing the relevant Incremental Revolving Credit Commitment), and such other Revolving Credit Lenders (including the Revolving Credit Lenders providing the relevant Incremental Revolving Credit Commitment) shall purchase such Revolving ~~Commitment Increase Lender) will equal~~ Credit Loans, in each case to the ~~percentage~~ extent necessary so that all of the ~~aggregate~~ Revolving Credit Lenders of such Tranche participate in each outstanding Borrowing of Revolving Credit Loans pro rata on the basis of their respective Revolving Credit Commitments of ~~all Revolving Credit Lenders represented by~~ such ~~Revolving Credit Lender’s~~ Tranche (after giving effect to any increase in the Revolving Credit Commitment ~~and (b) if, on the date~~ of such ~~increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior~~ Tranche pursuant to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitmentsthis Section 2.16)~~, which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans~~ ; it being ~~prepaid~~ understood and ~~any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree~~ agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to ~~the immediately preceding sentence.~~this clause (i); and (eii) ~~Notwithstanding anything to~~ if such Incremental Revolving Credit Commitment establishes Revolving Credit Commitments of a new Tranche, then (A) the ~~contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event~~ borrowing and repayment of ~~Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term~~ Revolving Credit Loans ~~in connection with a Permitted Acquisition may agree to modify the conditionality~~ with respect to ~~such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of~~ any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of Credit Facility after the effective date of such Incremental ~~Amendment, except~~ Revolving Credit Commitment may be made on a pro rata basis or non-pro rata basis with all other Revolving Credit Facilities (it being understood that (x) any Revolving Credit Facility that participates in borrowings on a pro rata basis with other Revolving Credit Facilities shall participate in repayments on a pro rata basis with such other Revolving Credit Facilities and (y) any Revolving Credit Facility that must participate in borrowings on a less than pro rata basis as compared to ~~the extent that~~ other Revolving Credit Facilities shall participate in repayments on a less than pro rata basis as compared to such ~~representations and warranties specifically refer to an earlier date~~other Revolving Credit Facilities (except, in ~~which case they~~ any case, for (1) payments of interest and fees at different rates on the Revolving Credit Facilities (and related outstandings), (2) repayments required on the Maturity Date of any Revolving Credit Facility and (3) repayments made in connection with a permanent repayment and termination of the Revolving Credit Commitments under any Revolving Credit Facility (subject to clause (C) below))), (B) all Letters of Credit shall be ~~true~~ participated on a pro rata basis by all Revolving Credit Lenders and ~~correct in all material respects~~ (orC) any permanent repayment of Revolving Credit Loans with respect to, and reduction and termination of Revolving Credit Commitments under, any Revolving Credit Facility after the effective date of such Incremental Revolving Credit Commitment may be made with respect to ~~representations and warranties modified by~~ such Incremental Revolving Credit Commitment on a ~~materiality~~ pro rata basis or ~~Material Adverse Effect standard,~~ non-pro rata basis with all other Revolving Credit Facilities (it being understood that (x) any Revolving Credit Facility that participates in ~~all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~borrowings on a pro rata basis w

Appears in 2 contracts

Sources: Credit and Guaranty Agreement (System1, Inc.), Credit and Guaranty Agreement (System1, Inc.)

Incremental Credit Extensions. ~~(a) Parent may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each~~ Section 2.24 of the ~~Lenders), request (a) one or more additional tranches of term loans (the “Incremental Term Loans”) or (b) one or more increases in the amount of the Revolving~~ Credit Commitments of any Facility (each such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan Agreement is ~~made (and after giving effect thereto),~~ amended by (i) ~~no Default or Event of Default shall exist~~ replacing the reference to “$50,000,000” with a reference to “$200,000,000” and (ii) ~~Parent shall be in Pro Forma Compliance with Section 7.09 for~~ inserting the ~~most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche~~ following at the end of the fourth sentence thereof: (provided that (1) if, following the incurrence of any Incremental Term Loans, the aggregate amount of Incremental Term Loans and Revolving Credit Commitment Increases would exceed $50,000,000, then (x) if the Effective Yield for such Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the Effective Yield then applicable to any tranche of outstanding Term Loans or Incremental Term Loans (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Term Loans and Incremental Term Loans shall automatically be increased by the Term Loan Yield Differential at each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth level in the ~~next sentence). Notwithstanding anything to~~ pricing grid, effective upon the ~~contrary herein, the aggregate amount~~ making of the Incremental Term Loans and (y) the ~~Revolving Commitment Increases (other than, for the avoidance~~ weighted average life to maturity of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be ~~determined by Parent and~~ no shorter than the ~~lenders thereof. (c) Each notice from Parent pursuant~~ weighted average life to ~~this Section 2.14 shall set forth the requested amount and proposed terms~~ maturity of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and ~~Revolving Commitment Increases shall become Commitments~~ (~~or in~~ 2) if, following the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any ~~Incremental Amendment shall be subject to such further conditions as Parent and~~ Revolving Credit Commitment Increase, the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ aggregate amount of Revolving Credit Commitments would exceed $75,000,000, then if the ~~proceeds of the Incremental Term Loans and Revolving Commitment Increases~~ Effective Yield for ~~any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in~~ the Revolving Credit Commitments effected pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Revolving Credit Commitment Increase exceeds the sum of the Effective Yield then applicable to any tranche of outstanding Term Loans or Incremental ~~Amendment, except to~~ Term Loans and 0.50% (the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as amount of such ~~earlier date~~excess being referred to herein as the “Revolving Credit Yield Differential”), then the Applicable Margin then in effect for such Term Loans and Incremental Term Loans shall automatically be increased by the Revolving Credit Yield Differential at each level in the pricing grid, effective upon the effectiveness of the Revolving Credit Commitment Increase). ~~(g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~

Appears in 1 contract

Sources: Credit Agreement (Verint Systems Inc)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to add one or more ~~additional~~ tranches of term A loans (the “Incremental Term A Loans”) or term B loans (bthe “Incremental Term B Loans” and, together with the Incremental Term A Loans, the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or one or more increases in the ~~amount of the~~ Revolving Credit Commitments ~~of any Facility~~ (~~each such increase~~the “Incremental Revolving Increases”; together with the Incremental Term Loans, a the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “~~Revolving Commitment Increase~~Incremental Facilities”); ~~provided,~~ provided that ~~upon the effectiveness of any Incremental Amendment referred to below and at the time~~ (i) after giving Pro Forma Effect thereto (assuming that any such Incremental ~~Term Loan is made (~~Revolving Facilities or Incremental Revolving Increases are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect ~~thereto)~~to any Specified Transaction consummated in connection therewith, the Borrower is in compliance (~~i) no Default or Event of Default shall exist and (ii) Parent shall be in~~ on a Pro Forma ~~Compliance with Section 7.09 for~~ Basis) the Financial Covenant as of the end of the most ~~recently ended~~ recent Test Period ~~for which financial statements have been delivered pursuant to Section 6.01. Each tranche~~ (as if the incurrence of such Incremental ~~Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount~~ Facility had occurred on the first day of such Test Period); provided that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term ~~Loans~~ Loans, Incremental Term Loan Increases and the ~~Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended~~ Incremental Revolving Credit Commitments ~~pursuant to Section 2.16)~~ shall not exceed the ~~Maximum~~ sum of (A) (x) $200,000,000, plus (B) additional amounts so long as, at the time of issuance or incurrence thereof, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of eight consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans, Incremental Term Loan Increases or Incremental Revolving Increases, as applicable, available under such Incremental Facilities ~~Amount.~~had been outstanding on the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds of any such Incremental Loans, does not exceed 4.00:1.00 and (ii) the sum of (A) the aggregate principal amount of all Incremental Revolving Facilities and (B) all Incremental Facilities consisting of Incremental Revolving Increases shall not exceed $20,000,000; (b) ~~Any Revolving Commitment Increase~~ The Incremental Facilities are subject to the following terms and conditions: (i) each Incremental Facility shall ~~be on~~ have the same ~~terms~~ guarantees as, and ~~pursuant to~~ be secured on a pari passu basis by the same ~~documentation applicable~~ Collateral securing, the Obligations hereunder; (ii) no existing Lender will be required to participate in any such Incremental Facility without its consent; (iii) at the time of each such request and upon the effectiveness of any Incremental Facility, no Event of Default shall have occurred and be continuing or shall occur as a result thereof; provided that in the case of any Incremental Facilities the proceeds of which are to be used to finance an acquisition permitted under this Agreement subject to customary “funds certain provisions”, (A) at the time of the execution and delivery of the purchase agreement related to such acquisition, no Event of Default shall have occurred and be continuing or shall occur as a result thereof and (B) upon the effectiveness of any Incremental Facility and the making of such Incremental Term Loan and/or Incremental Revolving ~~Credit Facility~~ Loan, no Specified Default shall have occurred and be continuing or shall occur as a result thereof; (~~including~~ iv) the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The of any such Incremental Term B Loans (aincluding any Refinancing Term Loans) shall ~~rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature~~ be no earlier than the Maturity Date ~~with respect to~~ of the Term ~~Loans, (c) shall not have a shorter~~ B Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans; (v) in the case of Incremental Revolving Increases, (dA) the maturity date of such Incremental Revolving Increases shall be ~~entitled~~ the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Increases shall require no scheduled amortization or mandatory commitment reduction prior to ~~share~~ the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Increases shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility; (vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and ~~voluntary prepayments~~ pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a ~~ratable (or less than ratable, but in no event greater than ratable)~~ pro rata basis with the Revolving Credit Facility; (vii) the interest rate margins, the maturity date of any Incremental Term ~~Loans,~~ A Loans and (esubject to clauses (iv) ~~shall bear interest at rates~~ and ~~be entitled~~ (vi) above, as appropriate) amortization schedule applicable to ~~upfront fees as~~ any Incremental Term Loans or Incremental Revolving Facilities shall be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders~~lenders thereunder; ~~provided, however,~~ provided that if in the ~~All-In Yield~~ event that the total all in interest rate margins for any Incremental Term B Loans ~~that are incurred under this Section 2.14 on a date~~ or any Incremental Revolving Facility (in each case, other than Refinancing Term Loans and Refinancing Revolving Commitments) that is ~~prior to~~ incurred are higher than the ~~twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to~~ interest rate margins for the Term B Loans or the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term B Loans or the Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term B Loans, or Incremental Revolving Facility, as the case may be, minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Term B Loans and the Term B Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B Loans or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any Incremental Term A Loans, Incremental Term B Loans or Incremental Revolving Facility shall be excluded, (B) original issue discount (“OID”) and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B Loans or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term B Loans or the Revolving Credit Facility, as applicable, shall be increased ~~so that~~ to the extent of such ~~excess~~ differential between interest rate floors; (viii) any Incremental Term A Loans, for purposes of prepayments, shall be ~~only 50 basis points. The~~ treated substantially the same as (and in any event no more favorably than) the Term B Loans; (ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans; (x) any Incremental Term Loans or any Incremental Revolving Facility shall ~~otherwise~~ be on terms and pursuant to documentation to be ~~determined by Parent~~determined; provided that, to the extent such terms and documentation are not consistent with the Term B Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (aiv), (vi), (vii), (viii) ~~through~~ and (eix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (~~it being understood~~ x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) shall reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to the ~~extent that any~~ Intercreditor Agreement and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance ~~covenant~~ covenants), taken as a whole, that are materially less advantageous to the Borrower and its Restricted Subsidiaries than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term B Loans); provided, however, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and (xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is ~~added for~~ not less than (A) $25,000,000 in the ~~benefit~~ case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving ~~Commitment Increase, no consent shall be required from the Administrative Agent~~ Facilities or ~~any Lender to the extent~~ Incremental Revolving Increases; provided that such ~~financial maintenance covenant is also added for~~ amount may be less than the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c)~~ applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above~~, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans or~~ Loans, Incremental Term Loan Increases, Incremental Revolving ~~Commitment~~ Facilities and/or Incremental Revolving Increases. ~~Incremental Term Loans may be made~~Any additional bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) all references to “the date of such ~~further conditions as Parent~~ Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date, (ii) the Incremental Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section 4.02(a) and (iii) to the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ extent the proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, the conditions in Section 4.02 may be subject to customary “SunGard” limitations). The proceeds of any Incremental Term Loans and ~~Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any~~ Incremental Term ~~Loans or Revolving Commitment Increases, unless it so agrees.~~ Loan Increases will be used only for general corporate purposes (d) including Permitted Acquisitions). Upon each increase in the ~~Revolving Credit~~ Aggregate Commitments pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving ~~Commitment~~ Increase (each a “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Letters of Credit and (iiB) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Media General Inc)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to time after the ~~Closing~~ Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver a copy~~ make available to each of the Lenders), request ~~(a) one or more additional tranches of term loans (the “Incremental Term Loans”) or (b)~~ to effect one or more increases in the aggregate amount of the Revolving ~~Credit~~ Commitments ~~of any Facility~~ (each such increase, a “Revolving Commitment Increase”)) from Additional Revolving Lenders; ~~provided,~~ provided that at the time of each such request and upon the effectiveness of ~~any~~ each Incremental ~~Amendment referred to below and at~~ Revolving Facility Amendment, (A) the ~~time that any such Incremental Term Loan is made~~ conditions set forth in Section 4.02 shall be satisfied, (B) the Borrower shall be in compliance on a Pro Forma Basis (before and after giving effect ~~thereto),~~ to any such Revolving Commitment Increase and assuming that such Revolving Commitment Increase is fully drawn) with (ix) ~~no Default or Event of Default shall exist~~ the covenants contained in Sections 6.10 and 6.11 and (iiy) ~~Parent shall be~~ a Senior Secured Leverage Ratio not to exceed 3.25 to 1.00, in ~~Pro Forma Compliance with Section 7.09 for~~ each case as of the last day of the most recently ended Test ~~Period for which financial statements~~ Period, (C) the Borrower shall have ~~been~~ delivered ~~pursuant~~ a certificate of a Financial Officer to ~~Section 6.01. Each tranche~~ the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above and (D) the maturity date of ~~Incremental Term Loans and each~~ such Revolving Commitment Increase shall be ~~in an aggregate principal amount that is not less than $50 million (provided~~the Revolving Maturity Date, ~~that~~ such ~~amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything~~ Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the ~~contrary herein, the aggregate amount of the Incremental Term Loans~~ Revolving Maturity Date and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any such Revolving Commitment Increase shall be on the same terms ~~and~~ governing the Revolving Commitments pursuant to this Agreement. Notwithstanding anything to contrary herein, the ~~same documentation applicable~~ sum of (i) the aggregate principal amount of the Revolving Commitment Increases and (ii) the aggregate principal amount of all Term Commitment Increases incurred after the Effective Date shall not exceed the Incremental Cap. Each Revolving Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the Incremental Cap. (b) At any time and from time to time after the Effective Date, subject to the ~~Revolving Credit~~ terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make such notice available to each of the Lenders), request to effect one or more additional tranches of terms loans hereunder or increases in the aggregate amount of the Term Commitments which shall take the form of an additional tranche of term loans hereunder (each such increase, a “Term Commitment Increase”, and the term loans made thereunder, “Incremental Term Loans”) from one or more Additional Term Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Term Facility Amendment, (~~including~~ A) the conditions set forth in Section 4.02 shall be satisfied, (B) the Borrower shall be in compliance on a Pro Forma Basis (before and after giving effect to any Incremental Term Loans made pursuant to such Term Commitment Increase) with the covenants contained in Sections 6.10 and 6.11, in each case as of the last day of the most-recently ended Test Period, (C) the Senior Secured Leverage Ratio, calculated on a Pro Forma Basis before and after giving effect to any Incremental Term Loans made pursuant to such Term Commitment Increase as of the last day of the most recently ended Test Period, shall not exceed 3.25 to 1.00, (D) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above, (E) the maturity date ~~in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect~~ of any term loans incurred pursuant to ~~the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving~~ such Term Commitment ~~Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b)~~ Increase shall not ~~mature~~ be earlier than the Latest Maturity Date ~~with respect to~~ then in effect and the ~~Term Loans, (c) shall not have a shorter~~ Weighted Average Life to Maturity of any term loans incurred pursuant to such Term Commitment Increase shall be no shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Term Loans, (dF) ~~shall be entitled~~ the interest rate margins and, subject to ~~share in mandatory and voluntary prepayments on a ratable~~ clause (~~or less than ratable~~E), ~~but in no event greater than ratable) basis with~~ the amortization schedule for any term loans incurred pursuant to such Term ~~Loans, and (e) shall bear interest at rates and be entitled to upfront fees as~~ Commitment Increase shall be determined by ~~Parent~~ the Borrower and the Additional Term Lenders with the applicable ~~new Lenders~~Term Commitment Increases; ~~provided, however,~~ provided that if in the event that the All-In Yield ~~for Incremental~~ of any Term ~~Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed~~ Commitment Increase exceeds the All-In Yield ~~with respect to~~ of the existing Term Loans by more than 50 basis points, then the interest rate margins ~~applicable to~~ for the existing Term Loans shall be increased to the extent necessary so that the All-In Yield of the Term Loans is equal to the All-In Yield of such ~~excess shall be only~~ term loans incurred pursuant to such Term Commitment Increase minus 50 basis points~~. The~~ , and (G) any Incremental Term ~~Loans~~ Facility Amendment shall ~~otherwise~~ be on the terms and pursuant to documentation to be determined by ~~Parent~~the Borrower and the Additional Term Lenders with the applicable Term Commitment Increases; provided ~~that,~~ that to the extent such terms and documentation are not consistent with ~~the Term Loans~~ this Agreement (except to the extent permitted by clauses (aE) ~~through~~ or (eF) above), they shall be reasonably satisfactory to the Administrative ~~Agent~~ Agent. Notwithstanding anything to contrary herein, the sum of (~~it being understood~~ i) the aggregate principal amount of the Term Commitment Increases and (ii) the aggregate principal amount of all Revolving Commitment Increases after the Effective Date shall not exceed (x) the Incremental Cap plus (y) an additional amount of Term Commitment Increases to the extent ~~that any financial maintenance covenant is added for the benefit of~~ that, on a Pro Forma Basis before and after giving effect to any Incremental Term ~~Loan or Revolving~~ Loans made pursuant to any such Term Commitment Increase, ~~no consent~~ as of the last day of the most recently ended Test Period, the Senior Secured Leverage Ratio shall not exceed 2.50 to 1.00. Each Term Commitment Increase shall be ~~required from the Administrative Agent or any Lender to the extent~~ in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such ~~financial maintenance covenant is also added for~~ amount may be less than $5,000,000 if such amount represents all the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to~~ remaining availability under the Incremental ~~Term Loans shall be determined by Parent and the lenders thereof~~Cap. (ci) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount ~~and proposed terms~~ of the relevant ~~Incremental Term Loans or~~ Revolving Commitment ~~Increases. Incremental~~ Increase or Term ~~Loans may be made, and Revolving~~ Commitment ~~Increases may be provided, by any existing Lender or by any other bank or other financial institution~~ Increase. (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheldii) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of ~~Incremental Term Loans and~~ any Revolving Commitment ~~Increases~~ Increase shall become Commitments (or in the case of a any Revolving Commitment Increase to be provided by an existing Revolving ~~Credit~~ Lender, an increase in such Revolving Lender’s ~~applicable~~ Revolving ~~Credit~~ Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each~~ such Additional Revolving Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ Revolving Commitment Increases may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Facility or, unless it agrees, be obligated to provide any Incremental Revolving Loan or Revolving Commitment Increase) or by any Additional Revolving Lender. An Incremental Revolving Facility Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicableSection. The effectiveness of any Incremental Revolving Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Revolving Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such ~~further conditions~~ Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Revolving Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). (iii) Commitments in respect of any Term Commitment Increase (the “Incremental Term Commitments”) shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as ~~Parent~~ appropriate, the other Loan Documents executed by the Borrower, each applicable Additional Term Lender and the ~~applicable Lenders and Additional Lenders shall agree~~Administrative Agent. ~~The Borrowers~~ Term Commitment Increases may ~~use~~ be provided, subject to the ~~proceeds~~ prior written consent of the ~~Incremental Term Loans and Revolving Commitment Increases for~~ Borrower (not to be unreasonably withheld), by any ~~purpose not prohibited by this Agreement. No~~ existing Lender (it being understood that no existing Lender shall have any right to participate in any Term Commitment Increase or, unless it agrees, be obligated to provide any Term Commitment Increases) or by any Additional Term Lender. An Incremental Term ~~Loans~~ Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or ~~Revolving Commitment Increases~~appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Term Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Term Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it ~~so agrees~~being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Term Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). (d) Upon each ~~increase in the~~ Revolving ~~Credit Commitments~~ Commitment Increase pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving ~~Credit~~ Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Additional Revolving Lender providing a portion of ~~the~~ such Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving ~~Credit ▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and ~~Swing Line~~ Swingline Loans such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Letters of Credit and (iiB) participations hereunder in ~~Swing Line~~ Swingline Loans held by each Revolving ~~Credit~~ Lender (including each such Revolving Commitment Increase Lender) will equal such Revolving Lender’s Applicable Percentage. Any Revolving Loans outstanding immediately prior to the ~~percentage~~ date of such Revolving Commitment Increase that are Eurocurrency Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such Loans immediately prior to the date of such Revolving Commitment Increase, in each case until the last day of the ~~aggregate~~ then-current Interest Period applicable to any such Loan, at which time it will be repaid or refinanced with new Revolving ~~Credit Commitments~~ Loans made pursuant to Section 2.01 in accordance with the Applicable Percentages of the Revolving Lenders after giving effect to the Revolving Commitment Increase; provided, however, that upon the occurrence of any Event of Default, each Revolving Commitment Increase Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans of other Revolving Lenders so that, after giving effect thereto, all Revolving ~~Credit~~ Loans that are Eurocurrency Loans are held by the Revolving Lenders ~~represented by~~ in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04; provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. If there are any ABR Revolving ~~Credit Lender’s Revolving Credit Commitment and (b) if,~~ Loans outstanding on the date of such ~~increase, there are any~~ Revolving ~~Credit Loans under the applicable Facility outstanding~~Commitment Increase, such ~~Revolving Credit~~ Loans shall either be prepaid by the Borrower on such date or ~~prior~~ refinanced on such date (subject to satisfaction of applicable borrowing conditions) with Revolving Loans made on such date by the Revolving Lenders (including the Revolving Commitment Increase Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Revolving Commitment Increase Lender will make ABR Revolving Loans to the ~~effectiveness~~ Borrower by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Revolving Commitment Increase Lender’s Revolving Commitment Increase by the aggregate amount of the Revolving Commitments (after giving effect to the Revolving Commitment Increase on such date) and (ii) such funds will be ~~prepaid from~~ applied to the ~~proceeds~~ prepayment of ~~additional~~ outstanding ABR Revolving ~~Credit~~ Loans ~~under~~ held by the ~~applicable Facility made hereunder (reflecting~~ Revolving Lenders other than the Revolving Commitment Increase Lenders, and transferred by the Administrative Agent to the Revolving Lenders other than the Revolving Commitment Increase Lenders, in such ~~increase~~ amounts so that, after giving effect thereto, all ABR Revolving Loans will be held by the Revolving Lenders in accordance with their then-current Applicable Percentages. On the date of such Revolving ~~Credit Commitments)~~Commitment Increase, ~~which prepayment shall be accompanied by~~ the Borrower will pay to the Administrative Agent, for the accounts of the Revolving Lenders receiving such prepayments, accrued and unpaid interest on the principal amounts of their Revolving ~~Credit~~ Loans being ~~prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05~~prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) ~~Notwithstanding anything~~ Upon each Term Commitment Increase pursuant to this Section, each Additional Term Lender shall make an additional term loan to the ~~contrary~~ Borrower in ~~this Section 2.14 or in Article IV or otherwise in this Agreement, so long~~ a principal amount equal to such Lender’s Term Commitment Increase. The Administrative Agent shall promptly notify each Lender as ~~no Event~~ to the effectiveness of ~~Default has occurred pursuant~~ each Term Commitment Increase and Revolving Commitment Increase and shall make available to ~~Section 8.01(a) or (f),~~ the ~~lenders providing~~ Lenders a copy of any each Incremental Term ~~Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such~~ Facility Amendment and Incremental ~~Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis~~Revolving Facility Amendment. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section ~~2.14~~ 2.20 shall supersede any provisions in Section ~~2.13~~ 2.18 or ~~10.01~~ Section 9.02 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Schiff Nutrition International, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrowers may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of Term B-34 Loans or add one or more additional tranches of term loans (any such Term B-34 Loans or additional tranche of term loans, the “Incremental Term Loans”) ~~or (b)~~ and/or one or more increases in the ~~amount of the~~ Revolving Credit Commitments ~~of any Facility~~ (~~each such increase,~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”)~~; provided~~. Notwithstanding anything to contrary herein, ~~that upon~~ the ~~effectiveness~~ aggregate Dollar Equivalent amount of ~~any~~ all Incremental ~~Amendment referred to below~~ Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the time ~~that any such Incremental Term Loan is made (and after giving effect thereto~~of incurrence), together with the aggregate principal amount of all Permitted Credit Facilities Acquisition Debt and Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) ~~no Default or Event~~ the greater of ~~Default shall exist~~ (x) $1,900,000,000 and (iiy) ~~Parent shall be in Pro Forma Compliance with Section 7.09~~ Consolidated EBITDA for the most recently ended Test Period ~~for which financial statements have been delivered pursuant~~ prior to ~~Section 6.01. Each tranche~~ such date plus (ii) the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder or any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder shall not increase the calculation of the amount under this clause (ii)) plus (iii) unlimited additional Incremental Facilities, Permitted Credit Facilities Acquisition Debt and Permitted Alternative Incremental Facilities Debt so long as, after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Credit Commitments are drawn in full) and after giving effect to any Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Term Loans or Incremental Revolving Credit Commitments), the First Lien Senior Secured Leverage Ratio shall not exceed 4.50:1.00; provided, for the avoidance of doubt, that Incremental Facilities, Permitted Credit Facilities Acquisition Debt and ~~each Revolving Commitment Increase~~ Permitted Alternative Incremental Facilities Debt may be incurred pursuant to this clause (iii) prior to utilization of the amount set forth in clause (i) above. Each Incremental Facility shall be in an integral multiple of $5,000,000 and be in an aggregate principal amount that is not less than $~~50 million (provided~~25,000,000 in case of Incremental Term Loans or $15,000,000 in case of Incremental Revolving Credit Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in above. Each Incremental Facility shall have the ~~next sentence). Notwithstanding anything to~~ same guarantees as, and be secured on a pari passu basis by the ~~contrary herein~~same Collateral securing, ~~the aggregate amount~~ all of the ~~Incremental Term Loans and the Revolving Commitment Increases (~~other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities AmountObligations under this Agreement. (b) Any Incremental Term Loans (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B-34 Loans, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrowers and the lenders thereunder (provided that, except in the case of Refinancing Term Loans or other Incremental Term Loans in an aggregate principal amount that does not exceed the greater of (x) $1,900,000,000 and (y) Consolidated EBITDA for the most recently ended Test Period prior to such date), if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing the Term B-34 Loans (but excluding customary arrangement or commitment fees payable to any arranger, bookrunner or agent or their Affiliates in connection therewith)) relating to any Term B-34 Loans as such Incremental Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate relating to such Term B-34 Loans shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Incremental Term Loans minus 0.50%; provided that, if the Incremental Term Loans include an interest rate floor greater than the applicable interest rate floor under such Term B-34 Loans, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under such Term B-34 Loans shall be required, but only to the extent an increase in the interest rate floor in such Term B-34 Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to such Term B-34 Loans shall be increased to the extent of such differential between interest rate floors), (iii) any Incremental Term Loan (other than a Refinancing Term Loan) shall not have a final maturity date earlier than the Maturity Date applicable to the Term B-34 Loans, the Revolving Credit Commitments or the Term A Loans, unless (A) such Incremental Term Loans are an increase in the amount of the Term B-34 Loans or (B) the amount of such Incremental Term Loans does not, at the time of incurrence, exceed the then remaining Earlier Maturing Basket Amount, (iv) any Incremental Term Loan (other than a Refinancing Term Loan) shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Term B-34 Loans unless (A) such Incremental Term Loans are an increase in the amount of the Term B-34 Loans or (B) the amount of such Incremental Term Loans does not, at the time of incurrence, exceed the then remaining Earlier Maturing Basket Amount and (v) shall have the same terms as the Term B-34 Loans or such terms as are reasonably satisfactory to the Administrative Agent. (c) Any Revolving Credit Commitment Increase shall (i) have the same maturity date as the Revolving Credit Commitments, (ii) require no scheduled amortization or mandatory commitment reduction prior to the final maturity of the Revolving Credit Commitments and (iii) be on the same terms and pursuant to the same documentation applicable to the Revolving Credit ~~Facility~~ Commitments. Any Additional Revolving Credit Commitments (~~including~~ i) shall have interest rate margins and amortization schedule as determined by the ~~maturity date~~ Borrowers and the lenders thereunder (provided that, if such Additional Revolving Credit Commitments are incurred prior to the first anniversary of the Closing Date, except in ~~respect thereof~~ the case of Refinancing Revolving Credit Commitments, if the Applicable Rate for Loans thereunder (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Additional Revolving Credit Commitments (but excluding ~~up-front~~ customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Additional Revolving Credit Commitments exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar ~~fees~~fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all Lenders for Revolving Credit Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)~~; provided~~) relating to the Revolving Credit Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate ~~with respect~~ relating to the Revolving Credit ~~Facility may~~ Loans shall be ~~increased if necessary~~ adjusted to be ~~consistent~~ equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with ~~that required by the~~ original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Additional Revolving Credit Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Additional Revolving Credit Commitments minus 0.50%; provided that, if the Additional Revolving Credit Commitments include an interest rate floor greater than the applicable interest rate floor under the Revolving ~~Commitment Increase. The Incremental Term Loans (a)~~ Credit Loans, such differential between interest rate floors shall ~~rank pari passu or junior in right~~ be equated to the Applicable Rate for purposes of ~~payment and of security with~~ determining whether an increase to the Applicable Rate under the Revolving Credit Loans shall be required, but only to the extent an increase in the interest rate floor in the Revolving Credit Loans would cause an increase in the interest rate then in effect thereunder, and in such case the ~~Term Loans~~interest rate floor (but not the Applicable Rate) applicable to the Revolving Credit Loans shall be increased to the extent of such differential between interest rate floors), (bii) which are Refinancing Revolving Credit Commitments shall not ~~mature~~ have a final maturity date earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the ~~Term Loans~~ Revolving Credit Commitments being refinanced thereby and (iii) shall ~~be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on~~ have the same terms ~~and pursuant to documentation to be determined by Parent; provided that, to~~ as the ~~extent~~ Revolving Credit Commitments or such terms ~~and documentation~~ as are ~~not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be~~ reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereofAgent. (cd) Each notice from ~~Parent~~ the Borrowers pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Credit Commitments shall be ~~made~~reasonably satisfactory to the Borrowers and the Administrative Agent (any such bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the ~~applicable Borrower~~Borrowers, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, ~~if any~~the Administrative Agent and, in the case of any Incremental Revolving Credit Commitments, each L/C Issuer and the ~~Administrative Agent~~Swing Line Lender; provided that no Incremental Term Loans may be provided by a Sponsor Affiliated Lender unless, after giving effect to such Incremental Term Loans, the aggregate Outstanding Amount of all Term Loans that are held by Sponsor Affiliated Lenders (other than Affiliated Debt Funds) does not exceed 25% of the aggregate Outstanding Amount of the Term Loans then outstanding. ~~The~~ For the avoidance of doubt, no L/C Issuer or Swing Line Lender is required to act as such for any Additional Revolving Credit Commitments unless they so consent. No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in Additional Lenders with respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such ~~further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the~~ Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement~~Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments, unless it so agrees. . Commitments in respect of any Incremental Term Loans or Incremental Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (deach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) if the proceeds of such Incremental Facility are to be used, in whole or in part, to finance a Limited Condition Acquisition, (1) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (2) Section 4.02(b) shall not apply). The proceeds of any Incremental Term Loans will be used only for general corporate purposes (including, without limitation, Permitted Acquisitions). Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit ~~Commitment and (b) if~~Commitment. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans ~~under~~ are outstanding at the ~~applicable Facility outstanding, such~~ time any Incremental Revolving Credit ~~Loans shall on or prior to~~ Commitments are established, the Revolving Credit Lenders immediately after effectiveness of such ~~Revolving Commitment Increase be prepaid from the proceeds of additional~~ Incremental Revolving Credit ~~Loans under the applicable Facility made hereunder (reflecting~~ Commitments shall purchase and assign at par such ~~increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ amounts of the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred by any~~ outstanding at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 3.05~~holds its Applicable Percentage of all Revolving Credit Loans outstanding immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Restaurant Brands International Limited Partnership)

Incremental Credit Extensions. (a) ~~Parent may,~~ The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ai) one or more additional tranches of term loans (the “Incremental Term Loans”) or (bii) one or more increases in the amount of the Revolving Credit Commitments ~~of any Facility~~ (each such increase, a “Revolving Credit Commitment Increase” and, together with the Incremental Term Loans, the “New Loan Commitments”)) by an amount not to exceed the sum of (x) $250,000,000 (the “Cash-Capped Incremental Facility”), plus (y) an unlimited additional amount (the “Ratio-Based Incremental Facility”) so long as the pro forma Consolidated Net Senior Secured Leverage Ratio of the Borrower and its Subsidiaries after giving effect to such Incremental Term Loans or Revolving Credit Commitment Increase shall not be greater than 3.95 to 1.00 plus (z) an amount equal to all voluntary prepayments of pari passu Term Loans made pursuant to Section 2.11(a) and repurchases of pari passu Term Loans made pursuant to the terms hereof and voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.11(a) to the extent accompanied by a corresponding, permanent reduction in the Revolving Credit Commitments pursuant to Section 2.11(a), in each case, to the extent not funded with the proceeds of long term Indebtedness (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided, further, that ~~upon the effectiveness~~ for purposes of any New Loan Commitments established pursuant to this Section 2.25 and Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered Equivalent Debt incurred pursuant to Section ~~6.01.~~ 2.26, (A) the Borrower may elect to use the Ratio-Based Incremental Facility prior to the Cash-Capped Incremental Facility or the Prepayment Based Incremental Facility, (B) if either the Cash-Capped Incremental Facility or the Prepayment Based Facility are available and the Borrower does not make an election, the Borrower will be deemed to have elected to use the Ratio-Based Incremental Facility and (C) New Loan Commitments pursuant to this Section 2.25 and Incremental Equivalent Debt pursuant to Section 2.26 may be incurred under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility and the Prepayment-Based Incremental Facility may be utilized in a single transaction by first calculating the incurrence under the Ratio-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash-Capped Incremental Facility or Prepayment-Based Incremental Facility) and then calculating the incurrence under the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility. (b) Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is a whole multiple of $5,000,000 which is not less than $~~50 million~~ 25,000,000 (~~provided,~~ provided that such amount may be less than $~~50 million~~ 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence~~). Notwithstanding anything~~ ) and there shall be not more than four requests for Incremental Term Loans or Revolving Credit Commitment Increases. (c) With respect to ~~the contrary herein, the aggregate amount~~ any Revolving Credit Commitment Increase or addition of Incremental Term Loans pursuant to this Section 2.25: (i) subject to clause (e) below (A) no Event of Default would exist after giving effect to such increase and (B) all representations and warranties in Section 4 shall be true and correct in all material respects, (ii) the Incremental Term Loans and ~~the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended~~ Revolving Credit ~~Commitments~~ Loans made pursuant ~~to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable~~ to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment ~~Increase. The Incremental Term Loans (a)~~ Increases shall rank pari passu ~~or junior~~ in right of payment and of security with the Revolving Credit Loans and the Term Loans, (iii) (A) in the case of any Revolving Credit Commitment Increase, (b1) the final maturity shall ~~not~~ be the same as the Maturity Date applicable to the Revolving Credit Facility, and (2) no amortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required and (B) in the case of any Incremental Term Loans, such Incremental Term Loans shall mature no earlier than the latest Maturity Date of the then outstanding Term Loan Facility and the weighted average life to maturity of such Incremental Term Loans shall be no shorter than the longest remaining weighted average life of the then outstanding Term Loan Facility; (iv) except with respect to All-in Yield as set forth in subclause (vi) below and final maturity and weighted average life to maturity as set forth in subclause (iii) above, or as otherwise agreed with a Person appointed by the Borrower to arrange an incremental Facility (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person (other than an Affiliate of the Borrower) appointed by the Borrower after consultation with the Administrative Agent; provided that such Person may not be an Affiliate of the Borrower), the “Incremental Arranger”) in the documentation relating to such Incremental Term Loans or Revolving Credit Commitment Increase, any such Incremental Term Loans or Revolving Credit Increase shall either (i) have the same terms as the Term Loan Facility or Revolving Credit Facility or (ii) have such other terms as may agreed by the Borrower and the lenders providing such New Loan Commitments; provided, that to the extent such terms are more favorable to the existing Lenders, when taken as a whole, than comparable terms existing in the Loan Documents (as determined by the Borrower in good faith), such terms may be, in consultation with the Administrative Agent and Borrower, incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin relating to any existing Term Loan Facility to bring such Applicable Margin in line with the Incremental Term Loans to achieve fungibility with such existing Term Loan Facility; (v) (v) to the extent reasonably requested by the Incremental Arranger and expressly set forth in the documentation relating to Incremental Term Loans or Revolving Credit Increase, the Incremental Arranger shall have received legal opinions, resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 5.1 or delivered from time to time pursuant to Section 6.10 with respect to the ~~Term Loans~~Borrower and each material Subsidiary Guarantor that is organized in a jurisdiction for which counsel to the Administrative Agent advises that such deliveries are reasonably necessary to preserve the Collateral in such jurisdiction (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Incremental Arranger); and (cvi) ~~shall not have a shorter Weighted Average Life~~ with respect to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for any Incremental Term Loans that are incurred ~~under this Section 2.14~~ on a or prior to the date that is ~~prior to~~ twelve months after the ~~twelve (12) month anniversary of the Amendment No. 2 Effective~~ Closing Date, ~~shall exceed~~ the All-In in Yield payable by the Borrower applicable to such Incremental Term Loans shall not be more than 50 basis points higher than the corresponding All-in Yield payable by the Borrower with respect to the Term Loan Facility, unless the All-in Yield with respect to the Term ~~Loans by more than 50 basis points, then the interest rate margins applicable~~ Loan Facility is increased to the ~~Term Loans shall be increased~~ amount necessary so that the difference between the All-in Yield with respect to such ~~excess shall be only 50 basis points. The~~ Incremental Term Loans ~~shall otherwise be on terms~~ and ~~pursuant to documentation to be determined by Parent; provided that, to~~ the ~~extent such terms and documentation are not consistent with~~ corresponding All-in Yield of the Term ~~Loans~~ Loan Facility is equal to 50 basis points (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) abovethis proviso, the ~~amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~“MFN Provision”). (cd) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ 2.25 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Credit Commitment Increases. Incremental Term Loans may be made, and Revolving Credit Commitment Increases may be provided, by any ~~existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an~~ “Additional Lender”)~~; provided~~, provided that the Administrative ~~Agent, each Swing Line Lender and each L/C Issuer~~ Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s ~~making such Incremental Term Loans or~~ providing any such Revolving Credit Commitment Increases if such consent would be required under Section ~~10.06(b)~~ 10.1 for an assignment of Loans or ~~Revolving Credit~~ Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Credit Commitment Increases shall become Commitments (or in the case of a Revolving Credit Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ 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 Administrative Agent and ~~Parent~~ the Borrower, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable2.25. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 5.2 and such ~~further~~ other conditions as ~~Parent and~~ the ~~applicable Lenders and Additional Lenders~~ parties thereto shall agree. The ~~Borrowers may~~ Borrower will use the proceeds of the Incremental Term Loans and the Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Credit Commitment Increases, unless it so agrees~~. (d)~~ . Upon each increase in the Revolving Credit Commitments pursuant to this Section ~~2.14~~2.25, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”)) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans ~~under the applicable Facility~~ outstanding, ~~such~~ the Revolving Credit ~~Loans~~ Lenders (including the Additional Lenders) shall ~~on or prior to~~ make such payments as directed by the ~~effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase~~ Administrative Agent in ~~Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ order that the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred~~ are held by ~~any Lender~~ the Revolving Credit Lenders (including Additional Lenders) ratably in accordance with the increased Revolving Credit Commitments (and interest and other payments shall be adjusted accordingly). (e) In connection with any Limited Condition Transaction and any actions or transactions related thereto, in each case, at the option of the Borrower (the Borrower’s election to exercise such option, an “LCT Election”): (i) when calculating the availability of any basket or ratio in connection with any Incremental Term Loans or Revolving Credit Commitment Increase incurred or established, as applicable, in connection with such Limited Condition Transaction, the date of determination for availability under any such basket or ratio shall be determined at the time the definitive agreement related to such Limited Condition Transaction is entered into (the “LCT Test Date”), in which case, such Limited Condition Transaction will be given pro forma effect, including with respect to the Indebtedness to be incurred in connection therewith, and (ii) the date of determination for whether any such transaction is permitted under this Agreement shall be deemed in all respects to be the LCT Test Date; provided, however, that at the time of funding: (x) there shall be no Event of Default under Section ~~3.05.~~ 8(a) or Section 8(f) in existence, and (y) certain customary “specified representations” consistent with “SunGard” conditionality provision must be true and correct in all material respects. (f) The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to ~~the immediately preceding sentence. (e) Notwithstanding anything to the contrary in~~ this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis2.25. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (National CineMedia, Inc.)

Appears in 1 contract

Sources: Credit Agreement (National CineMedia, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, by the Borrowers may, with notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), ~~request~~ add (a1) one or more ~~additional~~ tranches of “term a” loans or “term b” loans or increase the amount of any such loans outstanding at such time (any such loans, the “Incremental Term Loans”) or and/or (b2) one or more increases in the Revolving Credit Commitments of any Class (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed (i) the Unrestricted Incremental Amount, plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans or any other Indebtedness secured on a pari passu basis with the Revolving Credit Facility (and, in the case of any revolving facility, to the extent accompanied by a permanent reduction of the relevant commitment) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Effective Date, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long-term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction) (~~each such increase~~this clause (ii), a the “~~Revolving Commitment Increase~~Voluntary Prepayment Amount”~~); provided~~) plus (iii) unlimited additional Incremental Facilities and Incremental Equivalent Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving Pro Forma Effect thereto and after giving effect ~~thereto~~to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (assuming such Incremental Facilities are fully drawn but excluding the cash proceeds of any such Incremental Facilities or Incremental Equivalent Debt, as the case may be), ~~(i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09~~ the Secured Leverage Ratio for the most recently ended Test Period ~~for which financial statements have been delivered~~ does not exceed 3.00:1.00, it being understood and agreed that Incremental Facilities may be incurred pursuant to ~~Section 6.01~~this clause (iii) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Commitments and/or any Incremental Equivalent Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the “Incremental Incurrence Test”), and if there is availability under this Incremental Incurrence Test at the time of the incurrence or establishment of such Incremental Facilities, then the Borrowers will be deemed to have elected to use such availability under the Incremental Incurrence Test first. Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1,000,000 and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $~~50 million (provided~~5,000,000 in case of Incremental Term Loans or $1,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth above. Each Incremental Facility (i) shall, if guaranteed, be guaranteed solely by the Guarantors that guarantee the other Obligations hereunder and (ii) if secured, will be secured solely by a Lien on the Collateral securing all of the other Obligations hereunder; provided that in the ~~next sentence). Notwithstanding anything~~ case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the ~~contrary herein,~~ applicable funds and related assets held in Escrow (and the ~~aggregate amount~~ proceeds thereof) until the time of the ~~Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance~~ release from Escrow of ~~doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount~~such funds. (b) Any ~~Revolving Commitment Increase~~ Incremental Term Loans (other than Refinancing Term Loans) (i) [reserved], (ii) shall ~~be on the same~~ have interest rate margins, fees, tenor and an amortization schedule (subject to clauses (iii) and (iv) below), optional prepayment or redemption terms and ~~pursuant to~~ other terms as determined by the ~~same documentation~~ Borrowers and the lenders thereunder, (iii) any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to any then-existing Term Loans or the Revolving Credit Facility (~~including the~~ but may have a springing maturity date ~~in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be~~ consistent ~~with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security~~ with the Revolving Credit ~~Loans and the Term Loans~~Facility), (biv) ~~shall not mature earlier than the Maturity Date with respect to the~~ any Incremental Term ~~Loans, (c)~~ Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of any then-existing Term Loans or, unless such Incremental Term Loans are customary “term a” loans provided by commercial banks, the Revolving Credit Facility, (v) except to the extent otherwise permitted by this Section 2.14, shall have substantially equivalent terms and conditions as any then-existing Incremental Term Loans or, if not on substantially equivalent terms and conditions as any then-existing Incremental Term Loans, on such terms as are either (dx) ~~shall be entitled~~ not materially more restrictive to ~~share in mandatory and voluntary prepayments on a ratable~~ the Borrowers (~~or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees~~ as ~~shall be~~ determined by the Parent ~~and~~ Borrower in good faith), when taken as a whole, than the ~~applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary~~ terms of the ~~Amendment No. 2 Effective Date, shall exceed the All~~existing Revolving Credit Loans or any then-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The existing Incremental ~~Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the~~ Term Loans (except for covenants or other provisions applicable only to periods after the ~~extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to~~ final stated maturity of the ~~Administrative Agent (it being understood to~~ Revolving Credit Loans that are outstanding on the ~~extent that any financial maintenance covenant is~~ effective date of the applicable Incremental Term Loans or which are added for the benefit of ~~any Incremental Term Loan~~ the Lenders) or ~~Revolving Commitment Increase~~(y) reasonably acceptable to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent with respect to terms and conditions that are more restrictive than the Revolving Credit Facility or any ~~Lender to the extent~~ then-existing Incremental Term Loans that ~~such financial maintenance covenant is also~~ are added for the benefit of ~~any corresponding existing Term Loans) and subject to clauses (b) and (c) above,~~ the ~~amortization schedule (if any) applicable~~ Lenders or to the extent that they apply to periods after the then Latest Maturity Date with respect to the Loans then outstanding; provided, that in the case of any Incremental Term ~~Loans~~ Loan where no Incremental Term Loan otherwise then exists, this Agreement shall be ~~determined by Parent~~ amended to include customary provisions for the addition of such Incremental Term Loan, including but not limited to mandatory prepayment, call protection, discounted voluntary prepayment and permitted debt exchange provisions; provided, that upon establishment of any Incremental Facility, Incremental Equivalent Debt or any Ratio Debt that is in the ~~lenders thereof~~form of term loans that are secured on a pari passu basis with the Revolving Credit Facility, this Agreement may be amended to include customary “most favored nation” pricing protections. (c) Any Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate margins, fees, tenor and (subject to clauses (iii) and (iv)) an amortization schedule and other terms as determined by the Borrowers and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments (but may have a springing maturity date consistent with the Revolving Credit Facility) and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) any Incremental Revolving Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments (but may have a springing maturity date consistent with the Revolving Credit Facility), (iv) any Incremental Revolving Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments and (v) except to the extent otherwise permitted by this Section 2.14, shall have substantially equivalent terms and conditions as the Revolving Credit Commitments or such terms as are either (x) not materially more restrictive to the Borrowers (as determined by the Parent Borrower in good faith), when taken as a whole, than the terms of the existing Revolving Credit Loans (except for covenants or other provisions applicable only to periods after the final stated maturity of the Revolving Credit Loans that are outstanding on the effective date of the applicable Incremental Revolving Commitments or which are added for the benefit of the Lenders) or (y) reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the Revolving Credit Commitments to the extent that they apply to periods after the then Latest Maturity Date with respect to the Revolving Credit Facility or are otherwise added for the benefit of the Lenders hereunder. (d) Each notice from ~~Parent~~ the Borrowers pursuant to this Section 2.14 shall set forth the ~~requested~~ amount and ~~proposed~~ terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Commitments shall be ~~made~~reasonably satisfactory to the Borrowers (any such bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable Borrower~~Borrowers, such Additional Lender and, in the case of any Incremental Revolving Commitments, each ~~Lender agreeing~~ L/C Issuer (solely to ~~provide~~ the extent the L/C Issuer’s consent would be required under Section 10.07(b) for an assignment of Revolving Credit Commitments) (such ~~Commitment~~consent not to be unreasonably withheld, ~~if any, each Additional Lender, if any~~conditioned or delayed), and notified to the Administrative ~~Agent~~Agent (except as otherwise set forth below). ~~The~~ No Incremental Facility Amendment ~~shall, without~~ shall require the consent of ~~the Agents or the Lenders, effect such amendments to this Agreement~~ any Person other than Borrower and the ~~other Loan Documents as may be necessary or appropriate~~Additional Lenders with respect to such Incremental Facility Amendment and, in the ~~reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect~~ case of Incremental ~~Term Loans as “Lenders”~~Revolving Commitments, ~~and~~ the ~~Incremental Term Loans as “Loans” and/or “Term Loans”~~L/C Issuer (solely to the extent the L/C Issuer’s consent would be required under Section 10.07(b) for an assignment of Revolving Credit Commitments) (such consent not to be unreasonably withheld, ~~for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class~~ conditioned or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreementdelayed). No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrowers, to effect the provisions of this Section 2.14; provided, consent of the Administrative Agent to any Incremental Amendment shall be required (i) in the case of any Incremental Revolving Commitments or (ii) to the extent the terms of an Incremental Amendment would directly and adversely amend or modify the rights or duties, or otherwise materially increase the administrative responsibilities, of the Administrative Agent beyond those of the type already required to perform under the Loan Documents (such consent not to be unreasonably withheld, conditioned or delayed). Any Incremental Facility Amendment shall be pursuant to documentation to be mutually agreed among the Borrowers and the Lenders providing such Incremental Facility. (de) The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to (I) the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) the representations and warranties of each Loan Party set forth in Section 4,02 being true and correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date), (ii) no Event of Default shall exist, or would result from such issuance of the Incremental Facility; provided in the case of Incremental Facilities the proceeds of which will be used to finance a Limited Condition Transaction, (1) governed by the laws of the United States, (X) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (Y) no Specified Event of Default shall have occurred and be continuing or occur as a result thereof after giving effect to such Limited Condition Transaction and the funding of such Incremental Facility and (2) governed by laws other than the laws of the United States, only customary “certain funds” conditions for the applicable jurisdiction or as required by the terms of the documentation governing such Limited Condition Transaction will be required to be satisfied) and (II) subject in all respects to Section 1.09(a), after giving effect to such Incremental Facility and the use of proceeds thereof, compliance with Section 7.11 as in effect on the last day of the most recently ended Test Period on a Pro Forma Basis. The proceeds of any Incremental Term Loans will be used for general corporate purposes (including (without limitation) Permitted Acquisitions) and for any other purpose not prohibited hereunder. Upon each increase in the Revolving Credit Commitments under such Revolving Credit Facility pursuant to this Section 2.14, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding ~~(i)~~ participations hereunder in Letters of Credit ~~and (ii) participations hereunder in Swing Line Loans~~ under such Revolving Credit Facility held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) ~~will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by~~ under such Revolving Credit ~~Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable~~ Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.will equal

Appears in 1 contract

Sources: Credit Agreement (Alnylam Pharmaceuticals, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrowers may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a1) to increase the amount of Tranche A Term Loans or add one or more additional tranches of “term a” loans (any such Tranche A Term Loans, or additional tranche of “term a” loans, the “Incremental Term A Loans”), (2) to increase the amount of Tranche B Term Loans or add one or more additional tranches of “term b” loans (any such Tranche B Term Loans, or additional tranche of “term b” loans, the “Incremental Term B Loans” and together with the Incremental Term A Loans, collectively, the “Incremental Term Loans”~~) or~~ ), and/or (b3) one or more increases in the Revolving Credit Commitments of any Class (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed (i) the Unrestricted Incremental Amount, plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans or any other Indebtedness secured on a pari passu basis with the Initial Tranche A Term Loans and Initial Tranche B Term Loans (and, in the case of any revolving facility, to the extent accompanied by a permanent reduction of the relevant commitment) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Acquisition Closing Date (including pursuant to debt buy-backs made by the Parent Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in cash in respect thereof), but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction) (~~each such increase~~this clause (ii), a the “~~Revolving Commitment Increase~~Voluntary Prepayment Amount”~~); provided~~) plus (iii) unlimited additional Incremental Facilities and Incremental Equivalent Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving Pro Forma Effect thereto and after giving effect ~~thereto~~to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Facilities or Incremental Equivalent Debt, as the case may be), (iA) ~~no Default or Event of Default shall exist~~ if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with the Liens securing the Initial Tranche A Term Loans and ~~(ii) Parent shall be in Pro Forma Compliance with Section 7.09~~ the Initial Tranche B Term Loans, the First Lien Leverage Ratio for the most recently ended Test Period does not exceed 3.66:1.00 (or, to the extent such Incremental Facility is incurred in connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, the First Lien Leverage Ratio for ~~which financial statements have been delivered pursuant~~ the most recently ended Test Period does not exceed the greater of 3.66:1.00 and the First Lien Leverage Ratio immediately prior to ~~Section 6.01. Each tranche of~~ such Permitted Acquisition or permitted Investment), (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Initial Tranche A Term Loans and ~~each~~ the Initial Tranche B Term Loans, the Secured Leverage Ratio for the most recently ended Test Period does not exceed 4.16:1.00 (or, to the extent such Incremental Facility is incurred in connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, the Secured Leverage Ratio for the most recently ended Test Period does not exceed the greater of 4.16:1.00 and the Secured Leverage Ratio immediately prior to such Permitted Acquisition or permitted Investment) or (C) if such Incremental Facility is unsecured or secured only by Liens on assets that do not constitute Collateral, the Total Leverage Ratio for the most recently ended Test Period does not exceed 5.30:1.00 (or, to the extent such Incremental Facility is incurred in connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, the Total Leverage Ratio for the most recently ended Test Period does not exceed the greater of 5.30:1.00 and the Total Leverage Ratio immediately prior to such Permitted Acquisition or permitted Investment), it being understood and agreed that Incremental Facilities may be incurred pursuant to this clause (iii) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving ~~Commitment Increase~~ Commitments and/or any Incremental Equivalent Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the “Incremental Incurrence Test”). Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $~~50 million (provided~~5,000,000 in case of Incremental Term Loans or $1,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth above. Each Incremental Facility (i) shall, if guaranteed, be guaranteed by the Guarantors that guarantee the other Obligations hereunder and (ii) if secured, will be secured by a Lien on the Collateral securing all of the other Obligations hereunder; provided that in the ~~next sentence). Notwithstanding anything~~ case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the ~~contrary herein,~~ applicable funds and related assets held in Escrow (and the ~~aggregate amount~~ proceeds thereof) until the time of the ~~Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance~~ release from Escrow of ~~doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount~~such funds. (b) Any ~~Revolving Commitment Increase~~ Incremental Term Loans (other than Refinancing Term Loans) (i) for purposes of mandatory prepayments, shall be on treated substantially the same as (and in any event no more favorably than) (x) in the case of Incremental Term A Loans, the Initial Tranche A Term Loans, or (y) in the case of Incremental Term B Loans, the Initial Tranche B Term Loans, (ii) shall have interest rate margins, amortization schedule (subject to clauses (iii) and (iv) below), optional prepayment or redemption terms and other terms as determined by the Borrowers and the lenders thereunder (provided that, in the case of any Incremental Term Loans that are (A) incurred under the Incremental Incurrence Test (other than pursuant to Section 2.14(f)), (B) secured by the ~~same documentation~~ Collateral on a pari passu basis with the Initial Tranche B Term Loans and pari passu in right of payment with the Initial Tranche B Term Loans (excluding any Qualifying Bridge Facility), (C) denominated in U.S. dollars, (D) in an aggregate principal amount in excess of the greater of (I) $2,284,000,000 and (II) 100% of Consolidated EBITDA as of the most recent Test Period, (E) incurred during the first six (6) months after the Acquisition Closing Date, (F) scheduled to mature prior to the date that is one (1) year after the Maturity Date applicable to the ~~Revolving Credit~~ Initial Tranche B Term Loans, (G) not incurred to finance a Permitted Acquisition or other similar Investment and (H) broadly syndicated “term b” loans (any such Term Loans meeting the criteria of clauses (A) through (G) above and the following proviso, “Qualifying Term Loans”), if the Effective Yield for any such Incremental Term Loan exceeds the Effective Yield of the Initial Tranche B Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 1.00% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to the Initial Tranche B Term Loans shall be adjusted such that the Effective Yield of the Initial Tranche B Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 1.00% per annum, it being understood and agreed that the relative rate differentials in any pricing grid specified in the Applicable Rate shall continue to be maintained (the foregoing, including all qualifications and exceptions thereto, collectively, the ~~maturity date in respect thereof but excluding up-front commitment or similar fees~~“MFN Adjustment”); provided, ~~the Applicable Rate~~ further, that any increase in Effective Yield with respect to the ~~Revolving Credit Facility may be increased if necessary~~ Initial Tranche B Term Loans due to ~~be consistent with that required by~~ the ~~lenders providing the Revolving Commitment Increase. The~~ application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the Initial Tranche B Term Loans ~~(a)~~ shall ~~rank pari passu or junior~~ be effected solely through an increase in ~~right of payment and of security with~~ the ~~Revolving Credit Loans and~~ interest rate floor applicable to the Initial Tranche B Term Loans), (biii) other than with respect to any Inside Maturity Debt and any Qualifying Bridge Facility, any Incremental Term Loan shall not ~~mature~~ have a final maturity date earlier than the Maturity Date applicable to the Initial Tranche A Term Loans (if such Incremental Term Loans are Incremental Term A Loans) or Initial Tranche B Term Loans (if such Incremental Term Loans are Incremental Term B Loans), as applicable, (iv) other than with respect to ~~the~~ any Inside Maturity Debt and any Qualifying Bridge Facility, any Incremental Term ~~Loans, (c)~~ Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Initial Tranche A Term Loans (if such Incremental Term Loans are Incremental Term A Loans) or Initial Tranche B Term Loans (if such Incremental Term Loans are Incremental Term B Loans), ~~(d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans~~as applicable, and (ev) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent otherwise permitted by ~~clauses~~ this Section 2.14, shall have the same terms and conditions as the Initial Tranche A Term Loans (aif such Incremental Term Loans are Incremental Term A Loans) ~~through~~ or Initial Tranche B Term Loans (~~e) above~~if such Incremental Term Loans are Incremental Term B Loans), ~~they shall be~~ as applicable, or such terms as are reasonably satisfactory to the Administrative ~~Agent (~~Agent, it being understood ~~to the extent~~ that ~~any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase,~~ no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the Initial Tranche A Term Loans (if such Incremental Term Loans are Incremental Term A Loans) or ~~any Lender~~ Initial Tranche B Term Loans (if such Incremental Term Loans are Incremental Term B Loans), as applicable, to the extent that they apply to periods after the then Latest Maturity Date with respect to the Tranche A Term Loans (if such ~~financial maintenance covenant is also~~ Incremental Term Loans are Incremental Term A Loans) or Tranche B Term Loans (if such Incremental Term Loans are Incremental Term B Loans), as applicable, or are otherwise added for the benefit of ~~any corresponding existing~~ the Term ~~Loans) and subject to clauses (b) and (c) above, the amortization schedule~~ Lenders holding Tranche A Term Loans (if ~~any) applicable to the~~ such Incremental Term Loans ~~shall be determined by Parent and the lenders thereof~~are Incremental Term A Loans) or Term Lenders holding Tranche B Term Loans (if such Incremental Term Loans are Incremental Term B Loans), as applicable, hereunder. (c) Any Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrowers and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) any Incremental Revolving Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments and (v) except to the extent otherwise permitted by this Section 2.14, shall have the same terms and conditions as the Revolving Credit Commitments or such terms as are reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the Revolving Credit Commitments to the extent that they apply to periods after the then Latest Maturity Date with respect to the Revolving Credit Facility or are otherwise added for the benefit of the Revolving Credit Lenders hereunder. (d) Each notice from ~~Parent~~ the Borrowers pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or and/or Incremental Revolving ~~Commitment Increases~~Commitments. ~~Incremental Term Loans may be made~~Any additional bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided,~~ Person that ~~the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not~~ elects to ~~be unreasonably withheld) to such Lender’s or Additional Lender’s making such~~ extend Incremental Term Loans or ~~providing~~ Incremental Revolving Commitments shall be reasonably satisfactory to the Borrowers and, to the extent such ~~Revolving Commitment Increases~~ consent, if ~~such consent~~ any, would be required under Section ~~10.06(b~~10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Person, the Administrative Agent, the L/C Issuer and Swing Line Lender (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender~~. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases~~ ”) and, if not already a Lender, shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable Borrower~~Borrowers, such Additional Lender and, in the case of any Incremental Revolving Commitments, each L/C Issuer and Swing Line Lender ~~agreeing~~ and notified to ~~provide such Commitment, if any, each Additional Lender, if any, and~~ the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the ~~Agents or the Lenders, effect~~ Additional Lenders with respect to such ~~amendments to this Agreement and the other Loan Documents as may be necessary or appropriate~~Incremental Facility Amendment and, in the ~~reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect~~ case of Incremental ~~Term Loans as “Lenders”~~Revolving Commitments, the L/C Issuer and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this AgreementSwing Line Lender. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Commitments, unless it so agrees~~. (d) Upon each increase~~ . Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion opinion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the ~~Lenders hereby agree that~~ Borrowers, to effect the ~~minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in~~ provisions of this ~~Agreement~~ Section 2.14. Any Incremental Facility Amendment shall ~~not apply to the transactions effected~~ be pursuant to documentation to be mutually agreed among the ~~immediately preceding sentence~~Borrowers and the Lenders providing such Incremental Facility. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Facility Amendment ~~shall be subject to~~shall, ~~if requested by the Administrative Agent, receipt~~ unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) ~~customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on~~ the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.repre

Appears in 1 contract

Sources: Restatement Agreement (NortonLifeLock Inc.)

Incremental Credit Extensions. (ai) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Loan Parties may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of Term B Loans or 20223 Incremental Term Loans of any Class or add one or more additional tranches of term loans (any such Term B Loans, 20223 Incremental Term Loans or additional tranche of term loans, the “Incremental Term Loans”) ~~or (b)~~ and/or one or more increases in the ~~amount of~~ Revolving Credit Commitments under the Revolving Credit ~~Commitments of any~~ Facility (~~each such increase,~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”)~~; provided~~. Notwithstanding anything to contrary herein, ~~that upon~~ the ~~effectiveness~~ aggregate Dollar Equivalent amount of ~~any~~ all Incremental ~~Amendment referred to below~~ Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the time ~~that any such Incremental Term Loan is made (and after giving effect thereto~~of incurrence), ~~(i) no Default or Event~~ together with the aggregate principal amount of ~~Default~~ all Incremental Equivalent Debt and Indebtedness incurred in reliance on Section 7.03(r)(ii)(A), shall ~~exist and (ii) Parent~~ not exceed the Incremental Cap. Each Incremental Facility shall be in ~~Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche~~ an integral multiple of ~~Incremental Term Loans~~ $1,000,000 and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $~~50 million (provided~~10,000,000 in case of Incremental Term Loans or $5,000,000 in case of Incremental Revolving Credit Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth above. Each Incremental Facility shall have the same guarantees as, and to the extent secured, shall be secured only by (and on an equal or junior priority basis with) the Collateral securing, all of the other Loan Obligations under this Agreement (provided that, in the ~~next sentence~~case of any Incremental Facility that is funded into Escrow, such Incremental Facility may be secured by the applicable funds and related assets held in Escrow (and the proceeds thereof) until such Incremental Facility is released from Escrow) and shall be subject to an Acceptable Intercreditor Agreement. (ii) Any Incremental Term Loans (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans and/or 20223 Incremental Term Loans, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)~~. Notwithstanding anything to~~ ) amortization schedules as determined by the ~~contrary herein~~Borrower and the lenders thereunder (provided that, except in the ~~aggregate amount~~ case of Refinancing Term Loans, if (x) such Incremental Term Loans are Qualifying Term Loans incurred in reliance on clause (c) of the Incremental Cap, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the Term B Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Base Rate floor or Term SOFR floor) with respect to the Term B Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum, provided that, unless otherwise agreed by the Borrower in its sole discretion, any increase in All-In-Rate to any Term B Loan due to the application or imposition of a Base Rate floor or Term SOFR floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Term SOFR floor applicable to such Term B Loan and (y) such Incremental Term Loans are Additional Qualifying Term Loans incurred in reliance on clause (c) of the Incremental Cap, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the 20223 B-1 Incremental Term Loans and/or the 2023 B-2 Incremental Term Loans, as applicable, unless the Applicable Rate (and/or, as provided in the proviso below, the Base Rate floor or Term SOFR floor) with respect to the 20223 B-1 Incremental Term Loans and/or the 2023 B-2 Incremental Term Loans, as applicable, is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum, provided that, unless otherwise agreed by the Borrower in its sole discretion, any increase in All-In-Rate to any 20223 B-1 Incremental Term Loans and/or the 2023 B-2 Incremental Term Loans, as applicable, due to the application or imposition of a Base Rate floor or Term SOFR floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Term SOFR floor applicable to such 20223 B-1 Incremental Term Loans and/or the 2023 B-2 Incremental Term Loans, as applicable, (this proviso to this clause (b)(ii), the “MFN Provision”)), (iii) any Incremental Term Loan (other than Inside Maturity Loans) shall not have a final maturity date earlier than the Maturity Date applicable to the latest maturing Class of Term Loans on the date of incurrence of such Incremental Term Loans, (iv) any Incremental Term Loan (other than Inside Maturity Loans) shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the latest maturing Class of Term Loans and (v) shall be, taken as a whole, no more favorable to the lenders providing such Incremental Facility, in their capacity as such (as reasonably determined by the Borrower) (excluding (x) pricing, rate floors, original issue discounts or call protection, premiums and optional prepayment or redemption terms and (y) (I) covenants or other provisions applicable only to periods after the latest maturity date of the applicable Facility or (II) any more restrictive covenant, to the extent that (A) if such more restrictive covenant is added for the benefit of any Incremental Facility consisting of term loans other than Customary Term A Loans, such covenant (except to the extent only applicable after the Latest Maturity Date) is also added for the benefit of all of the Facilities or (B) if such more restrictive covenant is added for the benefit of any Incremental Facility consisting of a revolving facility or Customary Term A Loans, such covenant (except to the extent only applicable after the maturity date of the Revolving ~~Commitment Increases (other than,~~ Credit Facility) is also added for the ~~avoidance~~ benefit of ~~doubt~~the Revolving Credit Facility; it being understood and agreed that in each such case of clauses (A) and (B), ~~those established~~ no consent of any Agent and/or any Lender shall be required in ~~respect of Extended Term Loans or Extended~~ connection with adding such covenant). (iii) Any Revolving Credit Commitment Increase shall (i) have the same maturity date as the Revolving Credit Commitments ~~pursuant~~ under such Revolving Credit Facility that is being increased, (ii) require no scheduled amortization or mandatory commitment reduction prior to ~~Section 2.16~~the final maturity of the Revolving Credit Commitments and (iii) ~~shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall~~ be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Commitments under such Revolving Credit Facility that is being increased (it being understood that, if required to consummate a Revolving Credit Commitment Increase, the pricing, interest margin, rate floors and commitment fees shall be increased so long as such increases apply to the entire Revolving Credit Facility (~~including the maturity date in respect thereof but excluding up-front commitment~~ provided additional upfront or similar ~~fees~~fees may be payable to the Lenders participating in the Revolving Credit Commitment Increase without any requirement to pay such amounts to Lenders holding existing Revolving Credit Commitments)~~; provided~~). Any Additional Revolving Credit Commitments (i) shall have interest rate margins and, subject to clause (ii), have amortization schedules as determined by the Borrower and the lenders thereunder but shall not require scheduled amortization or mandatory commitment reductions prior to the Maturity Date of the Revolving Credit Facility, (ii) other than Inside Maturity Loans, mature no earlier than, and will require no mandatory commitment reduction prior to, the ~~Applicable Rate with respect~~ Maturity Date applicable to the Revolving Credit ~~Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans~~ Commitments, (aiii) ~~shall rank pari passu or junior in right of payment and of security with the~~ which are Refinancing Revolving Credit ~~Loans and the Term Loans, (b)~~ Commitments shall not ~~mature~~ have a final maturity date earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the ~~Term Loans~~ Revolving Credit Commitments being refinanced thereby and (iv) shall ~~be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on~~ have the same terms ~~and pursuant to documentation to be determined by Parent; provided that, to~~ as the ~~extent~~ Revolving Credit Commitments or such terms ~~and documentation~~ as are ~~not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be~~ reasonably satisfactory to the Administrative ~~Agent (~~Agent, it being understood ~~to the extent~~ that ~~any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase,~~ no consent shall be required from the Administrative Agent ~~or any Lender~~ for terms and conditions that are more restrictive than the existing Revolving Credit Commitments to the extent that they apply to periods after the Maturity Date applicable to the Revolving Credit Commitments or are otherwise added for the benefit of the Revolving Credit Lenders hereunder (which shall not require the consent of any Revolving Credit Lender or any Agent); provided that to the extent any covenant that is more restrictive than the Financial Covenants is added for the benefit of any Additional Revolving Commitments, such ~~financial maintenance~~ covenant (except to the extent only applicable after the maturity date of each Revolving Credit Facility) is also added for the benefit of each Revolving Credit Facility; it being understood and agreed that in each such case, no consent of any ~~corresponding existing Term Loans~~Agent and/or any Lender shall be required in connection with adding such covenant); provided that notwithstanding anything to the contrary in this Section 2.14(c), (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Additional Revolving Credit Commitments (and related outstandings), (B) repayments required upon the maturity date of the applicable Revolving Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Revolving Credit Loans with respect to Additional Revolving Credit Commitments shall be made on a no less than pro rata basis (with respect to borrowings) and ~~subject~~ a no greater than pro rata basis (with respect to ~~clauses~~ repayments) with all other Revolving Credit Commitments, (b2) all Letters of Credit may be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments, (3) the permanent repayment of commitments with respect to, and ~~(c) above~~termination of, Additional Revolving Credit Commitments prior to the ~~amortization schedule (if any)~~ Maturity Date applicable to the ~~Incremental Term Loans~~ Revolving Credit Commitments at the time of incurrence of such Additional Revolving Credit Commitments shall be ~~determined~~ made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrower shall be permitted to permanently repay and terminate commitments of any Class of Revolving Credit Commitments on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class and (4) assignments and participations of Additional Revolving Credit Commitments (and Revolving Credit Loans made thereunder) shall be governed by ~~Parent~~ the same or equivalent assignment and participation provisions applicable to the ~~lenders thereof~~Revolving Credit Commitments and Revolving Credit Loans. (civ) [Reserved]. (v) Each notice from ~~Parent~~ the applicable Loan Party pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Credit Commitments shall be ~~made~~reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable Borrower, each Lender agreeing to provide~~ Borrower and such ~~Commitment, if any, each~~ Additional Lender, ~~if any~~and, ~~and~~ in the ~~Administrative Agent~~case of any Incremental Revolving Credit Commitments, each L/C Issuer. ~~The~~ For the avoidance of doubt, no L/C Issuer is required to act as such for any Additional Revolving Credit Commitments unless they so consent. No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in Additional Lenders with respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such ~~further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the~~ Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement~~Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments, unless it so agrees. . Commitments in respect of any Incremental Term Loans or Incremental Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Additional Lenders, be subject to the satisfaction on the date thereof (deach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (ii) if the proceeds of such Incremental Facility are to be used, in whole or in part, to (x) finance a Permitted Acquisition or other Investment, (1) such incurrence shall be subject to the LCT Provisions and (2) no Specified Event of Default shall exist on the Incremental Facility Closing Date or (y) for any other purpose, no Event of Default shall exist on the Incremental Facility Closing Date). The proceeds of any Incremental Term Loans will be used for general corporate purposes and any other use not prohibited hereunder. Upon each increase in the Revolving Credit Commitments under any Revolving Credit Facility pursuant to this Section ~~2.14~~2.14 that is in the form of a Revolving Credit Commitment Increase, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment~~ Increase Lender”)) in respect of such Revolving Credit Commitment Increase, and each such Incremental Revolving ~~Commitment~~ Increase Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding ~~(i)~~ participations hereunder in Letters of Credit ~~and (ii) participations hereunder in Swing Line Loans~~ held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment~~ Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s Revolving Credit Commitment ~~and (b) if~~after giving effect to such Revolving Credit Commitment Increase. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans are outstanding under a Revolving Credit Facility at the ~~applicable Facility outstanding,~~ time any Revolving Credit Commitment Increase is implemented under such Revolving Credit ~~Loans shall on or prior to~~ Facility, the Revolving Credit Lenders immediately after effectiveness of such Revolving Credit Commitment Increase ~~be prepaid from the proceeds~~ shall purchase and assign at par such amounts of ~~additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred by any~~ outstanding under such Revolving Credit Facility at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 3.05~~holds its Applicable Percentage of all Revolving Credit Loans outstanding under such Revolving Credit Facility immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to ~~the immediately preceding sentence. (e) Notwithstanding anything to the contrary in~~ this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis2.14. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Travel & Leisure Co.)

Appears in 1 contract

Sources: Amended and Restated Credit Agreement (IASIS Healthcare LLC)

Incremental Credit Extensions. (a) ~~Parent may~~Subject to Section 2.14(f), (including the priorities applicable to the Priority Payment Obligations), at any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower or any Subsidiary Guarantor may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of any Class of Initial Term Loans or add one or more additional tranches of term loans (any such Initial Term Loans or additional tranche of term loans, the “Incremental Term Loans”) ~~or (b)~~ and/or one or more increases in the Revolving Credit Commitments (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) the greater of (x) $250.0 million and (y) 25.0% of LTM EBITDA (such amount the “Unrestricted Incremental Amount”) plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans and any other Indebtedness (in the case of such other Indebtedness, to the extent such Indebtedness is (y) secured on a pari passu basis with respect to security with the Obligations, (x) secured on a junior lien basis with the Obligations or (z) unsecured, and so long as it was not, in the case of clause (x) or (z), originally incurred under the Incremental Incurrence Test), payments made pursuant to Section 3.06(a) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (including pursuant to debt buy- backs made by Holdings or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) (~~each such increase~~this clause (ii), a the “~~Revolving Commitment Increase~~Voluntary Prepayment Amount”~~); provided~~) plus (iii) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving pro forma effect thereto and after giving effect ~~thereto~~to any Permitted Investment consummated in connection therewith and all other appropriate pro forma adjustments (but excluding the cash proceeds of any such Incremental Facilities and without giving effect to any amount incurred simultaneously under (x) the Unrestricted Incremental Amount or the Voluntary Prepayment Amount or (y) the Revolving Credit Facility), (iA) ~~no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance~~ if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with ~~Section 7.09~~ the Liens securing the Initial Term Loans, the Consolidated First Lien Secured Leverage Ratio for the most recently ended Test Period does not exceed 2.25:1.00, (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Initial Term Loans, is secured by assets not constituting Collateral or is unsecured, the Consolidated Total Leverage Ratio for ~~which financial statements have been delivered~~ the most recently ended Test Period does not exceed 3.50:1.00; provided that Incremental Facilities may be incurred pursuant to ~~Section 6.01~~this clause (iii) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Credit Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the “Incremental Incurrence Test”). Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $ 1.0 million and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than ~~$50~~ $ 5.0 million ~~(provided~~in case of Incremental Term Loans or $ 5.0 million in case of Incremental Revolving Credit Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amountabove. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (aother than Refinancing Term Loans) (i) for purposes of mandatory prepayments, shall ~~rank pari passu or junior~~ be treated substantially the same as (and in ~~right of payment and of security with the Revolving Credit Loans and~~ any event no more favorably than) the Term Loans, (bii) shall have interest rate margins (including “MFN” protection), (subject to clauses (iii) and (iv)), amortization schedule and other terms as determined by the Borrower and the Lenders thereunder (provided that, if the Effective Yield of any Incremental Term Loans that are MFN Qualifying Term Loans exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to such Initial Term Loans shall be adjusted such that the Effective Yield of such Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum, it being understood and agreed that the relative rate differentials in any pricing grid specified in the Applicable Rate shall continue to be maintained (the foregoing, including all qualifications and exceptions thereto, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the applicable Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to such Initial Term Loans), (iii) any Incremental Term Loan shall not ~~mature~~ have a final maturity date earlier than the Maturity Date ~~with respect~~ applicable to the Initial Term Loans, (civ) any Incremental Term Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Initial Term Loans, (dv) shall not be guaranteed by any person other than the Loan Parties and, to the extent secured, shall not be secured by any assets other than the Collateral and (vi) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and conditions and pursuant to documentation to be determined ~~by Parent; provided~~ between the Borrower and the Lenders providing such Incremental Term Loans (provided, that, to the extent any more restrictive term is added for the benefit of any Incremental Term Loans, such ~~terms and documentation are not consistent with the Term Loans~~ term (except to the extent ~~permitted by clauses (a~~only applicable after the Maturity Date of the Initial Term Loans) ~~through (e) above), they~~ shall also be ~~reasonably satisfactory to~~ added for the ~~Administrative Agent~~ benefit of the Term Loans (it being understood that (1) no consent of the Administrative Agent and/or any Lender shall be required in connection with adding such term and (2) to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term ~~Loan or Revolving Commitment Increase~~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~~ all of the Term Loans)); provided that the requirements in clauses (iii) and ~~subject to clauses~~ (iv) of this clause (b) ~~and (c) above, the amortization schedule (if any) applicable~~ shall not apply to ~~the Incremental Term Loans shall be determined by Parent and the lenders thereof~~any Inside Maturity Debt. (c) Any Incremental Revolving Credit Commitments (other than Refinancing Revolving Credit Commitments) (i) for purposes of mandatory prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) any Incremental Revolving Credit Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Credit Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments and (v) shall be on terms and conditions and pursuant to documentation to be determined between the Borrower and the Lenders providing such Incremental Revolving Credit Commitments. (d) Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Credit Commitments shall be ~~made,~~ reasonably satisfactory to the Borrower and ~~Revolving Commitment Increases may be~~ the Administrative Agent (provided, by the Administrative Agent’s consent shall only be required if such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed) (any such bank, financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the ~~applicable~~ Borrower, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, ~~if any~~the Administrative Agent and, in the case of any Incremental Revolving Credit Commitments and each L/C Issuer; provided, the Administrative Agent’s and/or L/C Issuer’s consent shall only be required if such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed or otherwise pursuant to Section 10.01. ~~The~~ For the avoidance of doubt, no L/C Issuer is required to act as such for any Additional Revolving Credit Commitments unless they so consent. No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in Additional Lenders with respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such ~~further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the~~ Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement~~Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments, unless it so agrees. . Commitments in respect of any Incremental Term Loans or Incremental Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Additional Lenders, be subject to the satisfaction on the date thereof (deach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) if the proceeds of such Incremental Facility are to be used, in whole or in part, (1) to finance a Permitted Investment, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (B) no Specified Default shall have occurred and Section 4.02(b) shall not apply or (2) to finance a Limited Condition Transaction, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (B) Section 4.02(b) shall not apply). The proceeds of any Incremental Term Loans will be used only for general corporate purposes (including, without limitation, other Investments not prohibited hereunder and Restricted Payments). Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ▇L▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding ~~(i)~~ participations hereunder in Letters of Credit ~~and (ii) participations hereunder in Swing Line Loans~~ held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit ~~Lender~~L▇▇▇▇▇’s Revolving Credit ~~Commitment and (b) if~~Commitment. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans ~~under~~ are outstanding at the ~~applicable Facility outstanding, such~~ time any Incremental Revolving Credit ~~Loans shall on or prior to~~ Commitments are established, the Revolving Credit Lenders immediately after effectiveness of such ~~Revolving Commitment Increase be prepaid from the proceeds of additional~~ Incremental Revolving Credit ~~Loans under the applicable Facility made hereunder (reflecting~~ Commitments shall purchase and assign at par such ~~increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ amounts of the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred by any~~ outstanding at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 3.05~~holds its Applicable Percentage of all Revolving Credit Loans outstanding immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness Any portion of any Incremental ~~Amendment shall~~ Facility incurred other than under the Incremental Incurrence Test may be ~~subject to~~reclassified at any time, as the Borrower may elect from time to time, as incurred under the Incremental Incurrence Test if ~~requested by~~ the ~~Administrative Agent, receipt by~~ Borrower meets the ~~Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on~~ applicable ratio under the ~~Closing Date (conformed as appropriate, including to reflect any~~ Incremental ~~Term Loans provided~~ Incurrence Test at such time on a ~~“certain funds” basis), (ii) reaffirmation agreements and/or~~ pro forma basis for such ~~amendments~~ reclassification at any time subsequent to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date incurrence of such Incremental ~~Amendment, except to the extent that~~ Facility (or would have met such ~~representations and warranties specifically refer to an earlier date~~ratio, in which ~~case they~~ case, such reclassification shall be ~~true and correct in all material respects (or, with respect~~ deemed to ~~representations and warranties modified~~ have automatically occurred if not elected by ~~a materiality or Material Adverse Effect standard, in all respects) as of such earlier date~~the Borrower). ~~(g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~

Appears in 1 contract

Sources: Credit Agreement (Windstream Parent, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a1) to increase the amount of Term A Loans of an existing Class or add one or more additional tranches of “term A” loans (any such Term A Loan or additional tranche of “term A” loans, the “Incremental Term A Loans”), (2) to add one or more tranches of “term B” loans (any such tranche of “term B” loans, the “Incremental Term B Loans” and together with the Incremental Term A Loans, collectively, the “Incremental Term Loans”~~) or~~ ), and/or (b3) one or more [[6419514]][[8001818]] increases in ~~the amount of~~ the Revolving Credit Commitments of any ~~Facility~~ Class (~~each such increase,~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new Classes of Revolving Credit Commitments (“Additional Revolving Credit Commitments” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”)~~; provided~~. Notwithstanding anything to the contrary herein, ~~that upon~~ the ~~effectiveness~~ aggregate principal amount of ~~any~~ all Incremental ~~Amendment referred to below~~ Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time ~~that~~ of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed an amount equal to (i) the Unrestricted Incremental Amount, plus (ii) the amount of any ~~such~~ voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans, any Incremental Term ~~Loan is~~ Loans or Incremental Equivalent Debt and voluntary permanent reductions after the ClosingAmendment Effective Date of the Revolving Credit Commitments or any Incremental Equivalent Debt constituting a revolving credit commitment (including pursuant to debt buy-backs made by the Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in cash in respect thereof) that in each case are (x) secured on a pari passu basis with the Obligations or (y) to the extent incurred under the Unrestricted Incremental Amount, unsecured, but excluding prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under any Revolving Credit Facility or other revolving Indebtedness) (this clause (ii), the “Voluntary Prepayment Amount”) plus (iii) an additional amount so long as, after giving Pro Forma Effect to the incurrence of such amount and after giving effect ~~thereto~~to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Facilities or Incremental Equivalent Debt, as the case may be), ~~(i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09~~ the Secured Net Leverage Ratio for the most recently ended Test Period does not exceed 2.00 to 1.00, assuming for ~~which financial statements~~ purposes of such calculation that the full committed amount of any new Incremental Revolving Credit Commitments and/or any Incremental Equivalent Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the “Incremental Incurrence Test”), it being understood and agreed that Incremental Facilities and Incremental Equivalent Debt may be incurred under the Incremental Incurrence Test prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount, and if there is availability under the Incremental Incurrence Test, the Unrestricted Incremental Amount and the Voluntary Prepayment Amount, unless otherwise elected by the Borrower, then the Borrower will be deemed to have ~~been delivered pursuant~~ elected to ~~Section 6.01~~use the Incremental Incurrence Test prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount. Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1,000,000 and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $~~50 million (provided~~5,000,000 in case of Incremental Term Loans or $1,000,000 in case of Incremental Revolving Credit Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth above. Each Incremental Facility may not be (A) guaranteed by any Person that does not guarantee the other Obligations hereunder, and (B) secured by any assets not constituting Collateral; provided that in the ~~next sentence). Notwithstanding anything~~ case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the ~~contrary herein,~~ applicable funds and related assets held in Escrow (and the ~~aggregate amount~~ proceeds thereof) until the time of the ~~Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance~~ release from Escrow of ~~doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount~~such funds. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (aother than Refinancing Term Loans) ~~shall rank pari passu~~ (i) may participate (x) on a pro rata basis, a less than pro rata basis, or ~~junior~~ a greater than pro rata basis in ~~right of payment and of security~~ any voluntary repayments or prepayments hereunder with ~~the Revolving Credit~~ any then outstanding Term Loans and ~~the~~ (y) on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments hereunder with any then outstanding Term Loans, (bii) shall ~~not mature earlier~~ have upfront fees, interest rate margins, an amortization schedule (subject to clauses (iii) and (iv) below), optional prepayment or redemption terms and other terms as determined by the Borrower and the lenders thereunder, (iii) other than ~~the Maturity Date~~ with respect to ~~the Term Loans~~any Qualifying Bridge Facility, ~~(c)~~ shall not have a ~~shorter~~ final maturity date earlier than the Latest Maturity Date applicable to any then outstanding Term Loans, and in addition, (A) in the case of Incremental Term A Loans, shall not have a final maturity date earlier than the Latest Maturity Date applicable to any then outstanding Term A Loans and (B) in the case of Incremental Term B Loans, shall not have a final maturity date earlier than the Latest Maturity Date applicable to any then outstanding Incremental Term B Loans, but in each case may have a springing maturity date consistent with the Initial [[6419514]][[8001818]] Term Facility, the Fourth Amendment Incremental Term Facility and the Initial Revolving Credit Facility, (iv) other than with respect to any Qualifying Bridge Facility, shall not have a Weighted Average Life to Maturity that is shorter than the longest remaining Weighted Average Life to Maturity of ~~the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the~~ any then outstanding Term Loans, and in addition, (eA) ~~shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and~~ in the ~~applicable new Lenders; provided, however, that if the All-In Yield for~~ case of Incremental Term ~~Loans that are incurred under this Section 2.14 on~~ A Loans, shall not have a ~~date~~ Weighted Average Life to Maturity that is ~~prior~~ shorter than the longest remaining Weighted Average Life to Maturity of any then outstanding Term A Loans and (B) in the ~~twelve (12) month anniversary~~ case of ~~the Amendment No. 2 Effective Date~~Incremental Term B Loans, shall ~~exceed~~ not have a Weighted Average Life to Maturity that is shorter than the ~~All-In Yield with respect~~ longest remaining Weighted Average Life to ~~the Term Loans by more than 50 basis points,~~ Maturity of any then ~~the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The~~ outstanding Incremental Term ~~Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that~~B Loans, ~~to the extent such terms and documentation are not consistent with the Term Loans~~ (v) except to the extent otherwise permitted by ~~clauses (a) through (e) above)~~this Section 2.14, ~~they~~ shall be have terms that are reasonably satisfactory to the Administrative Agent or otherwise are not materially more restrictive (~~it being understood~~ when taken as a whole) on the Borrower and its Restricted Subsidiaries than those applicable to any then outstanding Term Loans, and in addition, (A) in the ~~extent~~ case of Incremental Term A Loans, not materially more restrictive (when taken as a whole) on the Borrower and its Restricted Subsidiaries than those applicable to any then outstanding Term A Loans, except for any terms that are applicable only after the Latest Maturity Date applicable to any ~~financial maintenance covenant is~~ then outstanding Term A Loans or are otherwise added for the benefit of the Lenders of any then outstanding Term A Loans and (B) in the case of Incremental Term ~~Loan~~ B Loans, not materially more restrictive (when taken as a whole) on the Borrower and its Restricted Subsidiaries than those applicable to any then outstanding Incremental Term B Loans, except for any terms that are applicable only after the Latest Maturity Date applicable to any then outstanding Incremental Term B Loans or ~~Revolving Commitment Increase, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also~~ are otherwise added for the benefit of the Lenders of any ~~corresponding existing~~ then outstanding Incremental Term B Loans, and (vi) ~~and~~ that are Incremental Term B Loans may, subject to ~~clauses~~ the foregoing clause (b) v), contain “most favored lender,” call protection and ~~(c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~“excess cash flow” mandatory prepayment provisions as well as other provisions then customary for loans of such type. (c) Any Incremental Revolving Credit Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments shall be treated substantially the same as (and in any event no more favorably than) the then-existing Revolving Credit Commitments, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv) below) an amortization schedule as determined by the Borrower and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Class of Revolving Credit Commitments being so increased, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Class of Revolving Credit Commitments being so increased and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Class of Revolving Credit Commitments being so increased and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Latest Maturity Date applicable to any then-existing Revolving Credit Commitments (but may have a springing maturity date consistent with the Initial Revolving Credit Facility) and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Credit Commitments), (iii) shall not have a final maturity date earlier than the Latest Maturity Date of any then-existing Revolving Credit Commitments (but may have a springing maturity date consistent with the Initial Revolving Credit Facility), (iv) shall have no scheduled mandatory commitment reduction in respect thereof prior to the Latest Maturity Date of the Revolving Credit Commitments and (v) except to the extent otherwise permitted by this Section 2.14, shall have terms that are reasonably satisfactory to the Administrative Agent or otherwise are not materially more restrictive (when taken as a whole) on the Borrower and its Restricted Subsidiaries than those applicable to any then-existing Revolving Credit Commitments, except for any terms that are applicable only after the Latest Maturity Date applicable to any then-existing Revolving Credit Commitments or are otherwise added for the benefit of the Revolving Credit Lenders hereunder. (d) Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or and/or Incremental Revolving ~~Commitment Increases~~Credit Commitments. ~~Incremental Term Loans may be made~~Any additional bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided,~~ Person that ~~the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not~~ elects to ~~be unreasonably withheld) to such Lender’s or Additional Lender’s making such~~ extend Incremental Term Loans or ~~providing~~ Incremental Revolving Credit Commitments shall be reasonably satisfactory to the Borrower and, to the extent such ~~Revolving Commitment Increases~~ consent, if ~~such consent~~ any, would be required [[6419514]][[8001818]] under Section ~~10.06(b~~10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Person, the Administrative Agent and each L/C Issuer (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender~~. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases~~ ”) and, if not already a Lender, shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and~~ the Administrative Agent, such Additional Lender and, in the case of any Incremental Revolving Credit Commitments, each L/C Issuer. ~~The~~ No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the ~~Agents or the Lenders, effect~~ Additional Lenders with respect to such ~~amendments to this Agreement and the other Loan Documents as may be necessary or appropriate~~Incremental Facility Amendment and, in the ~~reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect~~ case of Incremental ~~Term Loans as “Lenders”~~Revolving Credit Commitments, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreementeach L/C Issuer. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments, unless it so agrees, and shall be deemed to have declined if it fails to respond to the applicable notice from the Borrower pursuant to this Section 2.14. Commitments in respect of any Incremental Term Loans or Incremental Revolving Credit Commitments shall become Commitments under this Agreement. Notwithstanding anything to the contrary herein, an Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.14. Any Incremental Facility Amendment shall be pursuant to documentation to be mutually agreed among the Borrower, the Administrative Agent and the Lenders providing such Incremental Facility. (de) The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (provided that in the case of Incremental Facilities the proceeds of which will be used to finance a Limited Condition Transaction, (1) governed by the laws of the United States, the conditions set forth in Section 4.02 may be modified in a manner customary for “SunGard” limited condition transactions, in each case as agreed by the Borrower and the Lenders providing such Incremental Facility and (2) governed by laws other than the laws of the United States, only customary “certain funds” conditions for the applicable jurisdiction or as required by the terms of the documentation governing such Limited Condition Transaction will be required to be satisfied). The proceeds of any Incremental Term Loans will be used for the purposes set forth in the applicable Incremental Facility Amendment. Upon each increase in the Revolving Credit Commitments of any Class pursuant to this Section 2.14, ~~(a)~~ each Revolving Credit Lender of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding ~~(i)~~ participations hereunder in Letters of Credit ~~and (ii) participations hereunder in Swing Line Loans held by each~~ under such Revolving Credit ~~Lender (including each such Revolving Commitment Increase Lender)~~ Facility will equal the percentage of the aggregate Revolving Credit Commitments of ~~all Revolving Credit Lenders~~ such Class represented by such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s Revolving Credit Commitment ~~and (b) if, on the date~~ of such ~~increase~~Class. Additionally, ~~there are~~ if any Revolving Credit Loans are outstanding under a Revolving Credit Facility at the ~~applicable Facility outstanding,~~ time any Incremental Revolving Credit Commitments are established under such Revolving Credit ~~Loans shall on or prior to~~ Facility, the Revolving Credit Lenders of such Class immediately after effectiveness of such ~~Revolving Commitment Increase be prepaid from the proceeds of additional~~ Incremental Revolving Credit ~~Loans under the applicable Facility made hereunder (reflecting~~ Commitments shall purchase and assign at par such ~~increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ amounts of the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred by any~~ outstanding under such Revolving Credit Facility at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 3.05~~under such Revolving Credit Facility holds its Applicable Percentage of all Revolving Credit Loans outstanding under such Revolving Credit Facility immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.elsewhere

Appears in 1 contract

Sources: Credit Agreement (RingCentral, Inc.)

Incremental Credit Extensions. ~~(a) Parent may,~~ The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ one or more additional tranches of ~~term loans~~ Tranche A Term Loans (the “Incremental Tranche A Term Loans”), Tranche B Term Loans (the “Incremental Tranche B Term Loans” and, together with the Incremental Tranche A Term Loans, the “Incremental Term Loans”) or revolving credit commitments (bthe “Incremental Revolving Credit Loans”) ~~one~~ or ~~more~~ increases in the aggregate amount of the Revolving Credit Commitments ~~of any Facility~~ (each such ~~increase,~~ increase a “Revolving Commitment Increase”; together with the Incremental Revolving Credit Loans, the “Incremental Revolving Facilities”) under the Facilities (each, an “Incremental Facility”)~~; provided~~, provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to ~~below~~ below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan is made or Incremental Revolving Facility becomes effective (and after giving effect thereto~~), (i~~) no Default or Event of Default shall exist and (ii) ~~Parent~~ the Borrower shall be in ~~Pro Forma Compliance~~ compliance with ~~Section 7.09 for~~ the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit covenant set forth in Section 7.11 determined on a Pro Forma Basis as of the ~~next sentence)~~date of such Incremental Facility and the last day of the most recent Test Period. ~~Notwithstanding anything to the contrary herein, the~~ The aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) Facilities shall not exceed the ~~Maximum~~ greater of (i) $250,000,000 and (ii) an amount such that, after giving pro forma effect to the Incremental ~~Facilities Amount.~~ Facility, the First Lien Leverage Ratio shall not exceed 3.75:1.00 (~~b) Any Revolving Commitment Increase~~ which, solely for purposes of determining the First Lien Leverage Ratio pursuant to this clause (ii), any Indebtedness incurred or proposed to be incurred under such Incremental Facility shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary deemed to be ~~consistent with that required by the lenders providing the Revolving Commitment Increase~~first-lien Indebtedness). The Incremental ~~Term Loans~~ Facilities (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) (x) in the case of a Revolving Commitment Increase, shall mature on the Maturity Date of the Revolving Credit Facility and (y) shall not mature earlier than the Maturity Date ~~with respect to~~ of (1) the Tranche A Term Facility, in the case of Incremental Tranche A Term Loans, and (2) the Tranche B Term Facility, in the case of Incremental Tranche B Term Loans, (c) shall ~~not~~ have a ~~shorter~~ Weighted Average Life to Maturity no shorter than the ~~remaining~~ Weighted Average Life to Maturity of (1) the Tranche A Term Facility, in the case of Incremental Tranche A Term Loans, and (2) the Tranche B Term Facility, in the case of Incremental Tranche B Term Loans, (d) except as set forth above, shall be ~~entitled to share~~ treated substantially the same as (and in ~~mandatory and voluntary prepayments on a ratable~~ any event, no more favorably than) (~~or less than ratable~~1) the Revolving Credit Facility, ~~but~~ in ~~no event greater than ratable~~the case of Incremental Revolving Credit Loans, (2) ~~basis with~~ the Tranche A Term Loans, in the case of Incremental Tranche A Term Loans and (3) the Tranche B Term Loans, in the case of Incremental Tranche B Term Loans (in each case, other than with respect to pricing, amortization and maturity), and (e) ~~shall bear~~ will accrue interest at rates ~~and be entitled to upfront fees as shall be~~ determined by ~~Parent~~ the Borrower and the lenders providing such Incremental Facility, which rates may be higher or lower than the rates applicable ~~new Lenders~~to (1) the Revolving Credit Facility, in the case of Incremental Revolving Credit Loans, (2) the Tranche A Term Loans, in the case of Incremental Tranche A Term Loans and (3) the Tranche B Term Loans, in the case of Incremental Tranche B Term Loans; ~~provided, however,~~ provided that ~~if the All-In Yield for~~ with respect to any Incremental Term Loans ~~that are~~ incurred ~~under this Section 2.14~~ after the Closing Date and until the second anniversary after the Closing Date, if the sum of the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans (with such upfront or similar fees or original issue discount being equated to interest based on ~~a date that is prior~~ an assumed four-year life to maturity) but excluding customary arrangement or commitment fees paid to the ~~twelve~~ arrangers thereof) and any “LIBOR floor” (12such sum, the “Incremental Rate”) ~~month anniversary~~ applicable to such Indebtedness relating to the Incremental Term Loans (1) exceeds, in the case of Incremental Tranche A Term Loans, the sum of the ~~Amendment No. 2 Effective Date~~Applicable Rate and Adjusted LIBOR (such sum, ~~shall exceed~~ the ~~All-In Yield with respect~~ “Tranche A Rate”) relating to the Tranche A Term Loans by more than ~~50 basis points~~0.50%, ~~then~~ the ~~interest rate margins applicable~~ Applicable Rate relating to the Tranche A Term Loans shall be ~~increased so~~ adjusted such that ~~such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to~~ the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant Tranche A Rate is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable equal to the Incremental Rate relating to the applicable Incremental Tranche A Term Loans minus 0.50%, and (2) exceeds, in the case of Incremental Tranche B Term Loans, the sum of the Applicable Rate and Adjusted LIBOR (such sum, the “Tranche B Rate”) relating to the Tranche B Term Loans by more than 0.50%, the Applicable Rate relating to the Tranche B Term Loans shall be ~~determined by Parent and~~ adjusted such that the ~~lenders thereof. (c)~~ Tranche B Rate is equal to the Incremental Rate relating to the applicable Incremental Tranche B Term Loans minus 0.50%. Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Facility. Incremental Term Loans and Incremental Revolving Facilities may be ~~made, and Revolving Commitment Increases may be provided,~~ provided by any existing Lender (and each existing Tranche A Term Lender will have the right, but not an obligation, to provide a portion of any Incremental Tranche A Term Loan, each existing Tranche B Term Lender will have the right, but not an obligation, to provide a portion of any Incremental Tranche B Term Loan, and each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Incremental Revolving Facility, in each case, on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”)~~; provided~~, provided that the Administrative ~~Agent, each Swing Line Lender and each L/C Issuer~~ Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans ~~or providing such~~ and Incremental Revolving ~~Commitment Increases~~ Facility if such consent would be required under Section ~~10.06(b~~10.07(b) for an assignment of Loans ~~or Revolving Credit Commitments, as applicable,~~ to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Incremental Revolving ~~Commitment Increases~~ Facilities shall become Commitments ~~(or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the ~~applicable~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ 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 Administrative Agent and ~~Parent~~ the Borrower, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicableSection. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such ~~further~~ Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as ~~Parent and~~ the ~~applicable Lenders and Additional Lenders~~ parties thereto shall agree. The ~~Borrowers may~~ Borrower will use the proceeds of the Incremental Term Loans and the Incremental Revolving ~~Commitment Increases~~ Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases,~~ Facilities unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: First Amendment and Restatement Agreement (Team Health Holdings Inc.)

Incremental Credit Extensions. (a) ~~Parent may,~~ The Company may at any time or from time to time after the ~~Closing~~ Amendment No. 1 Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (ax) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term ~~loans~~ loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans”” ) or (by) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of ~~any Facility~~ Revolving Credit Commitments (each such ~~increase~~increase or additional tranche, a an “Incremental Revolving ~~Commitment Increase~~Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”)~~; provided~~, provided that ~~upon~~ (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below ~~and at~~ (including, in the ~~time that~~ case of any ~~such~~ Incremental Term ~~Loan is made (and~~ Loan, after giving effect thereto), ~~(i)~~ no ~~Default or~~ Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall ~~exist~~ have occurred and be continuing, (ii) ~~Parent~~ the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be ~~in Pro Forma Compliance~~ incurred or that shall become effective shall not exceed, together with ~~Section 7.09 for the most recently ended Test Period for which financial statements have been delivered~~ any Indebtedness incurred pursuant to Section ~~6.01~~7.02(y), the Incremental Cap Amount (it being agreed that the Term B-1 Loans shall not be included in the calculation of the usage of the Incremental Cap Amount for purposes of borrowing the Term B-1 Loans on the Amendment No. ~~Each~~ 1 Effective Date or thereafter, for purposes of calculating the usage of clause (c) of the definition of Incremental Cap Amount), (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans ~~and each Revolving Commitment Increase~~ shall be in an aggregate principal amount that is not less than $~~50 million (provided~~50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, ~~that~~ in each case, such amount may be less than ~~$50 million~~ such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the ~~next sentence). Notwithstanding anything~~ Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the ~~contrary herein~~Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the ~~aggregate amount of~~ Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and ~~the Revolving Commitment Increases~~ (~~other than, for the avoidance~~ vii) there shall be not more than two separate tranches of ~~doubt, those established in respect of Extended Term Loans or Extended~~ Revolving Credit Commitments ~~pursuant~~ and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to ~~Section 2.16) shall not exceed~~ the ~~Maximum Incremental Facilities Amount~~Initial Revolving Credit Commitments. (bi) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans ~~(a)~~ shall rank pari passu ~~or junior~~ in right of payment and of security with the Revolving Credit Loans and the Term Loans, ; (bii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date ~~with respect~~ applicable to any Term Loan then outstanding; (iii) the Incremental Term ~~Loans, (c)~~ Loans shall not have a weighted average life to maturity shorter ~~Weighted Average Life to Maturity~~ than the ~~remaining Weighted Average Life~~ weighted average life to ~~Maturity~~ maturity of the existing Term Loans, ; (div) the Incremental Term Loans shall be ~~entitled to share~~ treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments ~~on a ratable (or less than ratable, but in no event greater than ratable) basis with~~ of the existing Term Loans~~, and~~ ; (ev) ~~shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that~~ if the ~~All-In~~ Effective Yield for the Incremental Term Loans ~~that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary~~ as of the ~~Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the~~ date of incurrence of such Incremental Term Loans ~~by more than 50 basis points,~~ exceeds the sum of the Effective Yield then ~~the interest rate margins~~ applicable to the Term B-1 Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Term B-1 Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Term B-1 Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term B-1 Loans shall be increased ~~so that~~ to the extent of such ~~excess shall be only 50 basis points. The~~ differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall ~~otherwise~~ be on substantially the same terms and ~~pursuant to documentation to be determined by Parent; provided that~~conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms ~~and documentation~~ (taken as a whole) are ~~not consistent with~~ more favorable to the lenders providing such Incremental Term Loans ~~(except~~ than those applicable to the ~~extent permitted by clauses (a) through (e) above)~~existing Term Loans, ~~they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is~~ are added for the benefit of ~~any~~ the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent. (c) Incremental ~~Term Loan or~~ Revolving ~~Commitment Increase, no consent~~ Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be ~~required from~~ on the ~~Administrative Agent or~~ same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any ~~Lender~~ existing Revolving Credit Loans or, to the extent ~~that~~ such ~~financial maintenance covenant is also~~ terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of ~~any corresponding~~ the Lenders of the existing ~~Term Loans) and subject~~ Revolving Credit Loans pursuant to ~~clauses (b) and (c) above,~~ an amendment to this Agreement executed by the ~~amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent~~ Company and the ~~lenders thereof~~Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments. (cd) Each notice from ~~Parent~~ the Company pursuant to this Section ~~2.14~~ 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving ~~Commitment Increases~~ Credit Commitments may be provided, by any existing Lender or by any ~~other bank or other financial institution (any such other bank or other financial institution being called an “~~Additional Lender~~”); provided~~, provided that the Administrative ~~Agent~~Agent and, with respect to Incremental Revolving Credit Commitments, each ~~Swing Line~~ Issuing Lender ~~and each L/C Issuer~~ shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving ~~Commitment Increases~~ Credit Commitments if such consent would be required under Section ~~10.06(b)~~ 10.06 for an assignment of Loans or ~~Revolving Credit~~ Commitments, as applicable, to such Lender or Additional Lender~~. Commitments in respect of~~ . (e) The Incremental Term ~~Loans~~ Loan Commitments and Incremental Revolving ~~Commitment Increases~~ Credit Commitments shall become Commitments (or in the case of a an Incremental Revolving Credit Commitment ~~Increase~~ to be provided by an existing Lender with a Revolving Credit ~~Lender~~Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the ~~applicable Borrower~~Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent; it being understood that Amendment No. ~~The~~ 1 constitutes an “Incremental ~~Amendment shall, without~~ Amendment” with respect to the ~~consent~~ establishment of the ~~Agents or the Lenders, effect such amendments to this Agreement~~ Term B-1 Loan Commitments as “Incremental Term Commitments” and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term B-1 Loans as “~~Lenders”, and the~~ Incremental Term ~~Loans as “~~Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be (subject to ~~such further conditions as Parent and~~ the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase parenthetical in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and clause (ii) ~~participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage~~ of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant proviso to Section ~~8.01(a) or (f~~2.24), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Amendment Agreement (Harsco Corp)

Incremental Credit Extensions. (a) ~~Parent may, at~~ (i) At any time or and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver a copy~~ make available to each of the Lenders), request to effect (ax) ~~one or more additional tranches of term loans (the “Incremental Term Loans”) or (b) one or more~~ increases in the aggregate amount of the Dollar Revolving Credit Commitments of any ~~Facility~~ Class (each such increase, a “Dollar Revolving Commitment Increase”)) or increases in the amount of the Alternative Currency Revolving Credit Commitments of any Class (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, the “Revolving Commitment Increases”) or (y) one or more additional Classes of revolving commitments (“Incremental Dollar Revolving Credit Commitments”) to make Dollar Revolving Credit Loans to the Borrower (the “Incremental Dollar Revolving Credit Loans”) or one or more additional Classes of revolving commitments (“Incremental Alternative Currency Revolving Credit Commitments”) to make Alternative Currency Revolving Credit Loans to the Borrower (“Incremental Alternative Currency Revolving Credit Loans” and, together with the Incremental Dollar Revolving Credit Loans, the “Incremental Revolving Loans”; ~~provided~~together with the Revolving Commitment Increases, the “Incremental Revolving Facilities”) from one or more Additional Revolving Lenders; provided that at the time of each such request and upon the effectiveness of ~~any~~ each Incremental Revolving Facility Amendment referred to ~~below~~ below, (A) the Borrower shall have delivered a certificate of a Responsible Officer demonstrating compliance with clause (iii) below, together with reasonably detailed calculations of the Senior Secured Leverage Ratio, (B) in the case of a Revolving Commitment Increase, the maturity date of such Revolving Commitment Increase shall be the Maturity Date of the Class of Revolving Credit Commitments being increased, such Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Maturity Date and at such Revolving Commitment Increase shall be on the ~~time~~ same terms governing the Revolving Commitments pursuant to this Agreement, (C) in the case of any Incremental Revolving Loans, the maturity date thereof shall be no earlier than the Latest Maturity Date of any Revolving Credit Commitments then outstanding and such Incremental Revolving Loans shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of any Revolving Credit Commitments then outstanding, (D) the interest rate margins and fees applicable to any Incremental Revolving Facility shall be determined by the Borrower and the lenders thereunder and (E) any Incremental Revolving Facility Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Revolving Lenders with the applicable Incremental Revolving Facilities; provided that to the extent such terms and documentation are not consistent with this Agreement (except to the extent permitted by clause (D) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that no L/C Issuer or Swing Line Lender shall be required to act as “issuing bank” or “swingline lender” under any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01Revolving Facility without its written consent. Each ~~tranche of~~ Incremental ~~Term Loans and each~~ Revolving ~~Commitment Increase~~ Facility made available to the Borrower shall be in an aggregate principal amount that is not less than a Dollar Amount of $~~50 million (provided,~~ 10,000,000; provided that such amount may be less than a Dollar Amount of $~~50 million~~ 10,000,000 if such amount represents all the remaining availability under the ~~limit~~ aggregate principal amount of Incremental Revolving Facilities set forth ~~in the next sentence)~~above. Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section ~~2.14~~ 2.14, Section 2.15 or ~~in Article IV or otherwise in this Agreement~~Section 2.17, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment there shall be ~~subject to, if requested by the Administrative Agent, receipt by the Administrative Agent~~ no more than six Classes of ~~(i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect~~ Revolving Credit Commitments outstanding at any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier dateone time. ~~(g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~

Appears in 1 contract

Sources: Credit Agreement (LVB Acquisition, Inc.)

Incremental Credit Extensions. Subject to the terms of this Section 2.25: (a) ~~Parent~~ A Borrower or Subsidiary Guarantor may, at any time or from time to time after the Closing Date, by notice from the Borrower Representative to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) and the Person appointed by the Borrower Representative to arrange an Incremental Facility (such Person, who may be the Administrative Agent, if it so agrees, or any other Person appointed by the Borrower Representative, the “Incremental Arranger”), request ~~(a)~~ one or more additional tranches of term loans and/or one or more increases to the amount of any Class of Term Loans then outstanding (the commitments thereof, the “Incremental Term Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Lender making such loans, an “Incremental Term Lender”) and/or one or more additional tranches of revolving loans (bthe “Additional/Replacement Revolving Commitments”) and/or one or more increases in the amount of the Revolving ~~Credit~~ Commitments of any ~~Facility~~ Class (each such increase, a “Revolving Commitment Increase”, the loans thereunder and under any Additional/Replacement Revolving Commitments, the “Incremental Revolving Loans”, and a Lender making a commitment to provide such Incremental Revolving Loans, an “Incremental Revolving Lender”); provided that the Borrowers and Subsidiary Guarantors may incur Incremental Term Commitments that are intended to be fungible with the Initial Term Loans on no more than five occasions prior to the initialbetween the Amendment No. 6 Effective Date and the Term Loan Maturity Date (as of the Amendment No. 6 Effective Date) unless the Administrative Agent otherwise agrees; provided, ~~that upon the effectiveness of~~ further, that: (i) after giving effect to any ~~Incremental Amendment referred to below~~ such Additional/Replacement Revolving Commitments, any such Revolving Commitment Increase and ~~at the time that~~ any such Incremental Term ~~Loan~~ Loans, the aggregate amount of such Additional/Replacement Revolving Commitments, Revolving Commitment Increases and Incremental Term Loans shall not exceed an amount equal to the sum of (w) an amount equal to $50,000,000; provided that the amount under this clause (w) may only be used to incur and/or establish Revolving Commitment Increases and/or Additional Replacement Revolving Commitments, plus (x) an unlimited amount at any time so long as the First Lien Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds of such Incremental Term Loans or of any Incremental Revolving Loans incurred pursuant to such Revolving Commitment Increase or such Additional/Replacement Revolving Commitments remaining on the balance sheet) as of the most recently ended Reference Period (calculated assuming that such Revolving Commitment Increase or Additional/Replacement Revolving Commitment is fully drawn throughout such period) does not exceed the greater of (A) 5.00 to 1.00 and (B) if incurred to finance an acquisition or other Investment permitted hereunder, the First Lien Net Leverage Ratio as of the most recently ended Reference Period, plus (y) the amount of all prior voluntary prepayments, loan buybacks (with credit given to the principal amount thereof) and commitment reductions of Term Loans, Revolving Loans, Incremental Loans, Indebtedness incurred pursuant to Section 7.2(b)(vi) that is secured by a Lien on the Collateral on a pari passu basis with the Obligations and Permitted Credit Agreement Refinancing Debt and Refinancing Indebtedness previously applied to the permanent repayment of any of the foregoing and the amount of any prepayments made to any Lender pursuant to Section 2.23, with any replacement of a Lender pursuant thereto being deemed, solely for this purpose, to constitute a prepayment (in each case to the extent not funded with the proceeds of long-term Indebtedness (except Indebtedness under one or more revolving credit or similar facilities) or the proceeds of Permitted Cure Securities applied pursuant to Section 9.4 and, with respect to any prepayment or commitment reduction of or in respect of revolving loans, to the extent accompanied by a permanent reduction in such revolving commitments) less the aggregate principal amount of Indebtedness incurred under Section 7.2(b)(vi)(y), plus (z) an amount equal to the greater of $325,000,0001,108,900,000 and 100% of Consolidated EBITDA on a Pro Forma Basis as of the most recently ended Reference Period (and after giving effect ~~thereto), (i~~to any acquisition or other transaction consummated concurrently therewith) ~~no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for~~ less the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate outstanding principal amount ~~that is not less than $50 million~~ of Indebtedness incurred under Section 7.2(b)(vi)(z) (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other thanprovided that, for the avoidance of doubt, ~~those established in respect of Extended Term Loans or Extended Revolving Credit Commitments~~ the amount available to the Borrowers pursuant to ~~Section 2.16~~clauses (w), (y) and (z) above shall be available at all times and shall not ~~exceed~~ be subject to any ratio test described in foregoing clause (x)); provided that, for the ~~Maximum~~ avoidance of doubt, if the applicable Borrower incurs Incremental ~~Facilities Amount.~~ Term Loans, Additional/Replacement Revolving Commitments or a Revolving Commitment Increase under clause (bx) ~~Any~~ above on the same date that it incurs indebtedness under clauses (w), (y) or (z) above, then the First Lien Net Leverage Ratio will be calculated with respect to such incurrence under clause (x) without regard to any incurrence of indebtedness under clauses (w), (y) or (z) above. Unless the Borrower Representative elects otherwise, any Incremental Term Loans, Additional/Replacement Revolving Commitments or Revolving Commitment Increase shall be on deemed incurred first under clause (x) above, with the ~~same terms~~ balance incurred under clauses (w), (y) and ~~pursuant to the same documentation applicable to the Revolving Credit Facility~~ (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increasez) above. The Borrower Representative may designate any Incremental Arranger of any Incremental Facility with such titles under the Incremental Facility as Borrower Representative may deem appropriate. (ii) the Incremental Term Loans ~~(a)~~ and Incremental Revolving Loans shall rank pari passu ~~or junior~~ in right of payment and of security with the ~~Revolving Credit~~ other Loans and ~~the Term Loans,~~ Commitments hereunder; (biii) any Additional/Replacement Revolving Commitments shall not mature earlier than the ~~Maturity~~ Revolving Termination Date ~~with respect to the Term Loans, (c)~~ and shall not have ~~a shorter Weighted Average Life to Maturity~~ amortization or scheduled mandatory commitment reductions (other than at the ~~remaining Weighted Average Life to Maturity of the Term Loans~~maturity thereof) and all other material terms (other than pricing, ~~(d) shall be entitled to share~~ maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and ~~voluntary prepayments on a ratable (or less than ratable~~immaterial terms, ~~but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as~~ which shall be determined by ~~Parent and~~ the ~~applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve~~ Borrower Representative) shall (12x) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not substantially consistent with the ~~Term Loans~~ existing Revolving Facility or (~~except to the extent permitted by clauses (a~~y) ~~through (e) above), they shall~~ be reasonably satisfactory to the Administrative Agent (it being understood ~~to the extent~~ that if any financial maintenance covenant or other more favorable provision (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms) is added for the benefit of any ~~Incremental Term Loan or~~ Additional/Replacement Revolving ~~Commitment Increase~~Commitments, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or such other provision is (i) also added for the benefit of any ~~corresponding~~ then-existing Revolving Facility, in which case such terms may be incorporated into this Agreement (or any other applicable Loan Document) for the benefit of the Revolving Facility without further amendment or consent requirements or (ii) only applicable after the Revolving Termination Date); (iv) other than Customary Bridge Financings and Indebtedness incurred pursuant to the Inside Maturity Basket, the Incremental Term ~~Loans~~Loans shall have a Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans and the Amendment No. 2 Incremental6 Refinancing Term Loans determined at the time of incurrence and shall not mature earlier than the Term Loan Maturity Date; (v) ~~and~~ subject to ~~clauses~~ clause (~~b) and (c~~iv) above, the interest rates and the amortization schedule ~~(if any)~~ applicable to ~~the~~ any such Incremental Term Loans shall be determined by ~~Parent~~ the Borrower Representative and the applicable Incremental Term Lenders; (vi) no Event of Default shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Term Loans and/or Incremental Revolving Loans made thereunder); provided, however, that in connection with a Limited Condition Transaction, the absence of an Event of Default shall be tested on the date specified in Section 1.4; (vii) with respect to any Dollar denominated Incremental Term Loans in the form of broadly syndicated term “B” loans, if the all-in-yield (whether in the form of interest rate margins, including interest rate floors (subject to clause (1) of the first proviso in this clause (vii)), upfront fees or OID (with any OID being equated to interest margin based on an assumed four-year life to maturity)) with respect to the Incremental Term Loans made thereunder paid by any Borrower to all lenders generally (as determined by the Borrower Representative and the applicable Incremental Arranger) (but excluding any arrangement, commitment, ticking, structuring or other similar fees payable in connection therewith, which shall not be included and equated to interest rate) with respect to the Incremental Term Loans made thereunder exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to clause (1) of the first proviso in this clause (vii)) and OID (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) paid by any Borrower to all lenders generally (computed in a manner consistent with the foregoing) with respect to the Initial Term Loans or the Amendment No. 2 Incremental6 Refinancing Term Loans, as applicable, that are denominated in the same currency as such Incremental Term Loans, as the case may be, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such Initial Term Loans orthe Amendment No. 2 Incremental6 Refinancing Term Loans, as applicable, denominated in the same currency shall automatically be increased by the Incremental Yield Differential (this clause (vii), after giving effect to the final proviso to this clause (vii), the “MFN Provision”); provided, (1) if the Incremental Term Loans include an interest-rate floor greater than the interest rate floor applicable to such Term Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to such Term Loans would cause an increase in the Applicable Margin, and in such case either the interest rate floor or the Applicable Margin (at the election of the Borrower Representative) applicable to such Term Loans shall be increased to the extent of such differential between interest rate floors and (2) any Incremental Term Loans that constitute fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis; provided further that the MFN Provision shall not apply to (A)(A) any Incremental Term Loans having an aggregate principal amount not exceeding the greater of $250,000,000832,000,000 and 75% of Consolidated EBITDA as of the most recently ended Reference Period (as selected by the Borrower Representative), (B)(B) Incremental Term Loans scheduled to mature on or after the date that is one year after the Term Loan Maturity Date as of the Closing Date, (C)(C) Incremental Term Loans incurred after the date that is 18 months after the Closing Date (or, solely in the case of Amendment No. 2 Incremental Term Loans, after the date that is 612 months after the Amendment No. 26 Effective Date) or (D)(D) Incremental Term Loans incurred in connection with an acquisition or other Investment permitted hereunder; (viii) the Incremental Term Loans, Additional/Replacement Revolving Commitments and Revolving Commitment Increases may be denominated in Dollars, any Alternative Currency and any other currency acceptable to the Incremental Arranger and the applicable Incremental Term Lenders or Incremental Revolving Lenders, as the case may be; (ix) no Incremental Term Loans, Additional/Replacement Revolving Commitments and Revolving Commitment Increases may be secured by any assets other than the Collateral and no Incremental Term Loans and Revolving Commitment Increases shall be guaranteed by any person other than the Borrowers and the Guarantors; (x) any Incremental Term Loans may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to ‎Section 2.10(a) and (B) on a pro rata or less than pro rata basis (but not on a greater than pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any mandatory prepayment of Term Loans required pursuant to ‎Section 2.11; (xi) except as otherwise required or permitted by the foregoing, all other terms of any Incremental Term Loans shall be as agreed between the applicable Borrowers and the Incremental Term Lenders; provided that if such Incremental Term Loans benefit from a financial covenant that is more restrictive than Section 7.1 of this Agreement, such financial covenant shall be either (A) conformed (or added) to the Loan Documents for the benefit of the Revolving Lenders pursuant to an amendment agreement between the Administrative Agent and the applicable Borrowers or (B) applicable only to periods after the Revolving Termination Date or otherwise reasonably satisfactory to the Administrative Agent; and (xii) no Additional/Replacement Revolving Commitments may be provided by an Affiliate of UK Holdco. (cb) The Revolving Commitment Increases shall be treated substantially the same as the Revolving Commitments being increased, and shall be considered to be part of the Class of Revolving Facility being increased (it being understood that (x) if required to consummate the provision of Revolving Commitment Increases, the pricing, interest rate margins, rate floors and facility fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders or the requirement to obtain the consent of any Lender) and (y) other terms that are more favorable to the lenders providing the Revolving Commitment Increase may be incorporated into this Agreement (or any other applicable Loan Document) for the benefit of the Class of Revolving Commitments being increased without the need for the consent of any Lender). Each notice from ~~Parent~~ the Borrower Representative to the Administrative Agent and the Incremental Arranger pursuant to ~~this~~ Section ~~2.14~~ 2.25(a) shall set forth the requested amount and principal proposed terms of the relevant Incremental Term ~~Loans~~ Loans, Additional/Replacement Revolving Commitments or Revolving Commitment ~~Increases.~~ Increase. (c) Incremental Term Loans may be made, and Additional/Replacement Revolving Commitments and Revolving Commitment Increases may be provided, by any existing Lender or by any ~~other bank or other financial institution~~ Additional Lender (~~any such other bank or other financial institution being called an “Additional Lender”); provided,~~ provided that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an no existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of ~~the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”~~any Incremental Facility), ~~and~~ in each ~~such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the~~ case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary terms permitted in this Section ~~2.14 or in Article IV or otherwise~~ 2.25, and, to the extent not permitted in this ~~Agreement~~Section 2.25, ~~so long as no Event of Default has occurred pursuant~~ all terms and documentation with respect to ~~Section 8.01(a) or (f), the lenders providing~~ any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject toLoan, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans Additional/Replacement Revolving Commitments or Revolving Commitment Increase ~~is provided with the benefit of the applicable Loan Documents and (iii) subject~~ which relate to ~~Section 2.14(e), a certificate~~ provisions of a ~~Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects~~ mechanical (~~or,~~ including with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.resp

Appears in 1 contract

Sources: Credit Agreement (Clarivate PLC)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, by the Borrowers may, with notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), ~~request~~ add (a1) one or more ~~additional~~ tranches of “term a” loans or “term b” loans or increase the amount of any such loans outstanding at such time (any such loans, the “Incremental Term Loans”) or and/or (b2) one or more increases in the Revolving Credit Commitments of any Class (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed (i) the Unrestricted Incremental Amount, plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans or any other Indebtedness secured on a pari passu basis with the Revolving Credit Facility (and, in the case of any revolving facility, to the extent accompanied by a permanent reduction of the relevant commitment) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Effective Date, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long-term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction) (~~each such increase~~this clause (ii), a the “~~Revolving Commitment Increase~~Voluntary Prepayment Amount”~~); provided~~) plus (iii) unlimited additional Incremental Facilities and Incremental Equivalent Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving Pro Forma Effect thereto and after giving effect ~~thereto~~to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (assuming such Incremental Facilities are fully drawn but excluding the cash proceeds of any such Incremental Facilities or Incremental Equivalent Debt, as the case may be), (iA) ~~no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance~~ if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with ~~Section 7.09~~ the Liens securing the Obligations, the First Lien Net Leverage Ratio for the most recently ended Test ~~Period~~ Period, calculated on a Pro Forma Basis, does not exceed 3.50:1.00 and (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Obligations or is unsecured, the Total Net Leverage Ratio for ~~which financial statements have been delivered~~ the most recently ended Test Period, calculated on a Pro Forma Basis, does not exceed the then-applicable Total Net Leverage Ratio level specified in Section 7.11, it being understood and agreed that Incremental Facilities may be incurred pursuant to ~~Section 6.01~~this clause (iii) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Commitments and/or any Incremental Equivalent Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the “Incremental Incurrence Test”), and if there is availability under this Incremental Incurrence Test at the time of the incurrence or establishment of such Incremental Facilities, then the Borrowers will be deemed to have elected to use such availability under the Incremental Incurrence Test first. Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1,000,000 and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $~~50 million (provided~~5,000,000 in case of Incremental Term Loans or $1,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth above. Each Incremental Facility (i) shall, if guaranteed, be guaranteed solely by the Guarantors that guarantee the other Obligations hereunder and (ii) if secured, (A) will be secured solely by a Lien on the Collateral securing all of the other Obligations hereunder; provided that in the ~~next sentence). Notwithstanding anything~~ case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the ~~contrary herein,~~ applicable funds and related assets held in Escrow (and the ~~aggregate amount~~ proceeds thereof) until the time of the ~~Incremental Term Loans~~ release from Escrow of such funds, and (B) the ~~Revolving Commitment Increases~~ beneficiaries thereof (~~other than, for the avoidance of doubt, those established in respect of Extended Term Loans~~ or ~~Extended Revolving Credit Commitments pursuant to Section 2.16~~an agent on their behalf) shall ~~not exceed the Maximum Incremental Facilities Amount~~have entered into an Acceptable Intercreditor Agreement. (b) Any ~~Revolving Commitment Increase~~ Incremental Term Loans (other than Refinancing Term Loans) (i) [reserved], (ii) shall ~~be on the same~~ have interest rate margins, fees, tenor and an amortization schedule (subject to clauses (iii) and (iv) below), optional prepayment or redemption terms and ~~pursuant~~ other terms as determined by the Borrowers and the lenders thereunder, (iii) any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to any then-existing Term Loans or the ~~same documentation applicable~~ Revolving Credit Facility or, in the case of any Incremental Term Loan that is secured on a junior basis to the Revolving Credit Facility ~~(including the maturity date in respect thereof but excluding up-front commitment~~ or ~~similar fees); provided~~unsecured, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a ~~shorter~~ final maturity date earlier than ninety-one (91) days after the Maturity Date of the Revolving Credit Facility, (iv) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of any then-existing Term Loans (or, in the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable case of any new ~~Lenders; provided, however, that if the All-In Yield for~~ Incremental Term Loans that are ~~incurred under this Section 2.14~~ secured on a ~~date~~ junior basis to the Revolving Credit Facility or unsecured, shall not have a Weighted Average Life to Maturity that is ~~prior~~ shorter than the Weighted Average Life to ~~the twelve (12) month anniversary~~ Maturity of ~~the Amendment No. 2 Effective Date, shall exceed the All~~any then-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The existing Incremental Term Loans ~~shall otherwise be~~ that are secured by Liens on ~~terms~~ the Collateral on a senior basis to such new Incremental Term Loans plus ninety-one (91) days) or, unless such Incremental Term Loans are customary “term a” loans provided by commercial banks or customary “term b” loans that have 1.00% per annum amortization, the Revolving Credit Facility, and ~~pursuant to documentation to be determined by Parent; provided that,~~ (v) except to the extent otherwise permitted by this Section 2.14, shall have substantially equivalent terms and conditions as any then-existing Incremental Term Loans or, if not on substantially equivalent terms and conditions as any then-existing Incremental Term Loans, on such terms ~~and documentation~~ as are either (x) not ~~consistent with~~ materially more restrictive to the Borrowers (as determined by the Parent Borrower in good faith), when taken as a whole, than the terms of the existing Revolving Credit Facility or any then-existing Incremental Term Loans (except for covenants or other provisions applicable only to periods after the ~~extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to~~ final stated maturity of the ~~Administrative Agent (it being understood to~~ Revolving Credit Facility that is outstanding on the ~~extent that any financial maintenance covenant is~~ effective date of the applicable Incremental Term Loans or which are added for the benefit of ~~any Incremental Term Loan~~ the Lenders) or ~~Revolving Commitment Increase~~(y) reasonably acceptable to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent with respect to terms and conditions that are more restrictive than the Revolving Credit Facility or any ~~Lender to the extent~~ then-existing Incremental Term Loans that ~~such financial maintenance covenant is also~~ are added for the benefit of ~~any corresponding existing Term Loans) and subject to clauses (b) and (c) above,~~ the ~~amortization schedule (if any) applicable~~ Lenders or to the extent that they apply to periods after the then Latest Maturity Date with respect to the Loans then outstanding; provided, that in the case of any Incremental Term ~~Loans~~ Loan where no Incremental Term Loan otherwise then exists, this Agreement shall be ~~determined~~ amended to include customary provisions for the addition of such Incremental Term Loan, including but not limited to mandatory prepayment, call protection, discounted voluntary prepayment and permitted debt exchange provisions; provided, that upon establishment of any Incremental Facility, Incremental Equivalent Debt or any Ratio Debt that is in the form of term loans that are secured by ~~Parent and~~ the ~~lenders thereof~~Collateral on a pari passu basis with the Revolving Credit Facility, this Agreement may be amended to include customary “most favored nation” pricing protections. (c) Any Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate margins, fees, tenor and (subject to clauses (iii) and (iv)) an amortization schedule and other terms as determined by the Borrowers and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms (other than initial upfront and closing fees) and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments (or, in the case of any Additional Revolving Credit Commitments that are secured on a junior basis to the Revolving Credit Facility or unsecured, shall be no earlier than the date that is ninety-one (91) days after the Maturity Date applicable to the Revolving Credit Commitments) and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments (or, in the case of any Additional Revolving Credit Commitments that are secured on a junior basis to the Revolving Credit Facility or unsecured, shall require no scheduled amortization or mandatory commitment reduction prior to the date that is ninety-one (91) days after the final Maturity Date of the Revolving Credit Commitments)), (iii) any Incremental Revolving Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments (or, in the case of any Incremental Revolving Commitments that are secured on a junior basis to the Revolving Credit Facility or unsecured, shall not have a final maturity date earlier than the date that is ninety-one (91) days after the Maturity Date applicable to the Revolving Credit Commitments), (iv) any Incremental Revolving Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments (or, in the case of any Incremental Revolving Commitments that are secured on a junior basis to the Revolving Credit Facility or unsecured, shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments plus ninety-one (91) days) and (v) except to the extent otherwise permitted by this Section 2.14, shall have substantially equivalent terms and conditions as the Revolving Credit Commitments or such terms as are either (x) not materially more restrictive to the Borrowers (as determined by the Parent Borrower in good faith), when taken as a whole, than the terms of the existing Revolving Credit Loans (except for covenants or other provisions applicable only to periods after the final stated maturity of the Revolving Credit Loans that are outstanding on the effective date of the applicable Incremental Revolving Commitments or which are added for the benefit of the Lenders) or (y) reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the Revolving Credit Commitments to the extent that they apply to periods after the then Latest Maturity Date with respect to the Revolving Credit Facility or are otherwise added for the benefit of the Lenders hereunder. (d) Each notice from ~~Parent~~ the Borrowers pursuant to this Section 2.14 shall set forth the ~~requested~~ amount and ~~proposed~~ terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Commitments shall be ~~made~~reasonably satisfactory to the Borrowers (any such bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable Borrower~~Borrowers, such Additional Lender and, in the case of any Incremental Revolving Commitments, each ~~Lender agreeing~~ L/C Issuer (solely to ~~provide~~ the extent the L/C Issuer’s consent would be required under Section 10.07(b) for an assignment of Revolving Credit Commitments) (such ~~Commitment~~consent not to be unreasonably withheld, ~~if any, each Additional Lender, if any~~conditioned or delayed), and notified to the Administrative ~~Agent~~Agent (except as otherwise set forth below). ~~The~~ No Incremental Facility Amendment ~~shall, without~~ shall require the consent of ~~the Agents or the Lenders, effect such amendments to this Agreement~~ any Person other than Borrower and the ~~other Loan Documents as may be necessary or appropriate~~Additional Lenders with respect to such Incremental Facility Amendment and, in the ~~reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect~~ case of Incremental ~~Term Loans as “Lenders”~~Revolving Commitments, ~~and~~ the ~~Incremental Term Loans as “Loans” and/or “Term Loans”~~L/C Issuer (solely to the extent the L/C Issuer’s consent would be required under Section 10.07(b) for an assignment of Revolving Credit Commitments) (such consent not to be unreasonably withheld, ~~for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class~~ conditioned or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreementdelayed). No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Commitments, unless it so agrees~~. (d) Upon each increase in~~ , and any Lender that does not respond to a request from the Loan Parties and affirmatively agree to provide Incremental Term Loans or Incremental Revolving ~~Credit~~ Commitments ~~pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act~~ shall be deemed to have ~~assigned~~ declined to ~~each Lender providing a portion~~ provide any Incremental Term Loans or Incremental Revolving Commitments. Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the ~~Revolving Commitment Increase~~ Administrative Agent and the Borrowers, to effect the provisions of this Section 2.14; provided, consent of the Administrative Agent to any Incremental Amendment shall be required (~~each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (~~i) in the case of ~~an increase to the~~ any Incremental Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and Commitments or (ii) ~~participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal~~ to the ~~percentage~~ extent the terms of an Incremental Amendment would directly and adversely amend or modify the rights or duties, or otherwise materially increase the administrative responsibilities, of the ~~aggregate Revolving Credit Commitments~~ Administrative Agent beyond those of ~~all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on~~ the ~~date of such increase, there are any Revolving Credit Loans~~ type already required to perform under the ~~applicable~~ Loan Documents (such consent not to be unreasonably withheld, conditioned or delayed). Any Incremental Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment Amendment shall be ~~accompanied by accrued interest on~~ pursuant to documentation to be mutually agreed among the ~~Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent~~ Borrowers and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceproviding such Incremental Facility. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Facility Amendment ~~shall be subject to~~shall, ~~if requested by the Administrative Agent, receipt~~ unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties ~~contained~~ of each Loan Party set forth in ~~Article V and the other Loan Documents shall be~~ Section 4.02 being true and correct in all material ~~respects~~ respect (~~or, with respect to~~ although any representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.warrantie

Appears in 1 contract

Sources: Credit Agreement (SailPoint, Inc.)

Incremental Credit Extensions. (a) ~~Parent may,~~ The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver~~ make a copy of such notice available to each of the Lenders), request ~~(a)~~ one or more additional tranches or, in consultation with the Administrative Agent, additions to an existing tranche of term loans (the “Incremental Term Loans”; the commitments thereunder, the “Incremental Term Loan Commitments”) or ~~(b)~~ one or more increases in the amount of the Revolving ~~Credit Commitments of~~ Commitment (any ~~Facility (each~~ such increase, a “Revolving Commitment Increase”; the commitments thereunder, the “Incremental Revolving Commitments” and, collectively, with the Incremental Term Loan Commitments, the “Incremental Commitments”); ~~provided,~~ provided that ~~upon~~ (i) after giving effect to the ~~effectiveness~~ making of ~~any Incremental Amendment referred to below and at the time that any~~ such Incremental Term Loans or the incurrence of any Revolving Commitment Increase, the aggregate principal amount of all Incremental Term Loans and Incremental Revolving Commitments incurred pursuant to this Section 2.19 (together with any Incremental Equivalent Debt incurred pursuant to Section 7.03(s) after the Closing Date) shall not exceed (x) $346,000,000 (provided that $35,000,000 of such amount under this clause (x) shall solely be available for Revolving Commitment Increases) plus (y) an unlimited additional amount, so long as on a Pro Forma Basis after the incurrence of such Incremental Term Loans and such Incremental Revolving Commitments (A) if such Incremental Loan ~~is made~~ ranks pari passu in right of security on the Collateral with the Obligations (~~and after giving effect thereto~~other than any Obligations in respect of other Incremental Loans or Refinancing Facilities secured on a junior lien basis to other Obligations), ~~(i) no Default or Event~~ the First Lien Leverage Ratio as of ~~Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for~~ the last day of the most recently ended Test Period does not exceed 3.90:1.00 and (B) if such Incremental Loan ranks junior in right of security on the Collateral to the Obligations (other than any Obligations in respect of other Incremental Loans or Refinancing Facilities secured on a junior lien basis to other Obligations), the Senior Secured Leverage Ratio as of the last day of the most recently ended Test Period does not exceed 3.90:1.00 (it being understood that (1) any Incremental Loan may be incurred under clause (y) prior to clause (x) and regardless of whether there is capacity under clause (x), (2) to the extent that both clause (x) and clause (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y), (3) any amounts incurred under clause (x), the Revolving Facility, Sections 7.03(e), 7.03(m), 7.03(r), 7.03(t), 7.03(u), 7.03(z), 7.03(bb), 7.03(s)(x) or 7.03(w), in each case, together with any amounts incurred to fund original issue discount (“OID”) and upfront fees, that is concurrently incurred with, or incurred in a single transaction or series of related transactions with, amounts under clause (y) will not count as Indebtedness for ~~which financial statements have been delivered pursuant~~ the purpose of calculating the First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, in clause (y) and (4) any portion of any Incremental Term Loans or any Incremental Revolving Commitments incurred in reliance on clause (x) may be reclassified, as the Borrower may elect from time to time, as incurred under clause (y) if the Borrower meets the applicable First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, under clause (y) at such time on a Pro Forma Basis (for purposes of clarity, with any such reclassification having the effect of increasing the Borrower’s ability to incur Indebtedness under clause (x) on and after the date of such reclassification by the amount of Indebtedness so reclassified)); provided, further, that for purposes of the calculation of the First Lien Leverage Ratio and the Senior Secured Leverage Ratio used in determining the availability of Incremental Term Loans or Incremental Revolving Commitments under this Section ~~6.01~~2.19(a), (i) any cash proceeds of any Incremental Term Loans or the Incremental Revolving Commitments, as applicable, then being incurred will not be netted for purposes of determining compliance with the First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, and (ii) the full amount of any Incremental Revolving Commitments then being incurred shall be deemed to be Indebtedness then outstanding (whether or not then incurred). Each tranche of Incremental Term Loans ~~and each Revolving Commitment Increase~~ shall be in an aggregate principal amount that is not less than $~~50 million~~ 5,000,000 (~~provided,~~ provided that such amount may be less than $~~50 million~~ 5,000,000 if such amount represents all remaining availability under the limit set forth in the ~~next~~ preceding sentence)~~. Notwithstanding anything to the contrary herein~~. (b) The terms, ~~the aggregate amount~~ provisions and documentation of the Incremental ~~Term Loans and the~~ Revolving ~~Commitment Increases~~ Commitments shall be identical (other ~~than~~than with respect to upfront fees, original issue discount or similar fees and, for the avoidance of doubt, ~~those established in respect of Extended Term Loans~~ any structuring, arrangement, underwriting or ~~Extended~~ other similar fees not shared with all lenders providing the applicable Incremental Revolving ~~Credit Commitments pursuant to Section 2.16~~Commitments) ~~shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable~~ to the Revolving ~~Credit Facility (including~~ Commitments existing hereunder on the ~~maturity~~ closing date ~~in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the~~ of such Incremental Revolving ~~Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase~~Commitments. The following terms shall apply to any Incremental Term Loans established pursuant to an Incremental Amendment: (i) such Incremental Term Loans (aA) shall rank pari passu ~~or junior~~ in right of payment ~~and of security~~ with ~~the Revolving Credit Loans and the~~ all other Term Loans, (bB) shall ~~not mature earlier than~~ be secured by the ~~Maturity Date~~ Collateral on a pari passu or junior basis with ~~respect to the~~ all other Term Loans, (cC) shall not ~~have~~ be guaranteed by any person other than a ~~shorter~~ Guarantor and (D) shall not be secured by any assets other than the Collateral, (ii) the maturity date of such Incremental Term Loans shall not be earlier than the OriginalExtended Term Loan Maturity Date, (iii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be less than the remaining Weighted Average Life to Maturity of the then outstanding Initial2021 New Term Loans (provided that the effects of any scheduled amortization or prepayments made on the Initial2021 New Term Loans prior to the Increased Amount Date shall be disregarded), (iv) if such Incremental Term Loan ranks pari passu in right of security with the existing Term Loans, ~~(d) shall be entitled to share in mandatory and voluntary prepayments~~ such Incremental Term Loan may participate on a ~~ratable (~~pro rata basis or on a less than ~~ratable,~~ pro rata basis (but ~~in no event~~ not on a greater than ~~ratable~~pro rata basis) ~~basis with~~ in any mandatory prepayments under the ~~Term Loans~~Loan Documents, ~~and (e) shall bear interest at rates and be entitled to upfront fees~~ as ~~shall be determined by Parent and~~ specified in the applicable ~~new Lenders;~~ Incremental Amendment (provided, however, that if any Incremental Term Loan may participate on a greater than pro rata basis, on a pro rata basis or on a less than pro rata basis in any voluntary prepayments), (v) subject to clauses (ii) and (iii) above, the ~~All~~amortization schedule applicable to any Incremental Term Loan shall be determined by the Borrower and the lenders thereunder, (vi) the applicable all-~~In Yield for~~ in yield relating to any Incremental Term Loans ~~that are~~ incurred under ~~this~~ clause (y) of Section ~~2.14~~ 2.19(a) pursuant to such Incremental Amendment (each facility thereunder, an “Incremental Facility”), if such Incremental Term Loans are (A) secured on a pari passu basis with the Initial Term Loans and (B) made on or prior to the date that is ~~prior to~~ eighteen (18) months after the ~~twelve (12) month anniversary of the Amendment No. 2 Effective~~ Closing Date, shall not exceed the ~~All~~all-~~In Yield with respect~~ in yield applicable to the Initial Term Loans by more than ~~50 basis points, then~~ 0.50% per annum unless the ~~interest rate margins~~ all-in yield applicable to the Initial Term Loans ~~shall be~~ is increased so that the all-in yield applicable to the applicable Incremental Facility does not exceed the all-in yield applicable to the Initial Term Loans by more than 0.50% per annum; provided that, in determining the all-in yield applicable to the Initial Term Loans and the applicable Incremental Facility, (A) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Initial Term Loans or the applicable Incremental Facility in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if less, the remaining life to maturity of the applicable Incremental Facility), (B) structuring, arrangement, underwriting, ticking and commitment and other fees not shared with all lenders providing the Initial Term Loans or the applicable Incremental Facility, and, if applicable, consent fees for an amendment paid generally to consenting lenders, shall be excluded and (C) if the Adjusted LIBO Rate in respect of such Incremental Facility includes a floor in excess of 1.00%, or the Alternate Base Rate in respect of such Incremental Facility includes a floor in excess of 2.00%, such excess shall be ~~only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant~~ equated to ~~documentation to be determined by Parent; provided that,~~ interest margin for purposes of determining any increase to the ~~extent such terms and documentation are not consistent with~~ applicable all-in yield under the Initial Term Loans (except to the extent ~~permitted by clauses~~ such floor does not result in an increase in interest rate) and any increase in the all-in yield applicable to the Initial Term Loans required due to the application of such floor on any Incremental Facility shall be effected solely through an increase in (aor implementation of, as applicable) ~~through~~ such floor in respect of the Initial Term Loans, (evii) subject to clause (vi) above, any fees payable in connection with any such Incremental Term Loan shall be determined by the Borrower and the arrangers providing for such Incremental Term Loan and (viii) except as otherwise required or permitted above, all other terms of such Incremental Term Loans (other than (1) provisions applicable only to periods after the Latest Maturity Date of then-existing Term Loans (as of the date of incurrence of such Incremental Term Loans) and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms (which shall be determined by the Borrower)) are either (I) customary market terms for Indebtedness of such type at the time of incurrence (taken as a whole) (as determined in good faith by the Borrower) or (II) substantially identical to, or when taken as a whole, are not materially more restrictive with respect to the Restricted Group than the terms of the Term Loans (as of the date of incurrence of such Incremental Term Loans), ~~they shall be reasonably satisfactory~~ in each case under this clause (viii)(II), unless the then-existing Term Loans (other than any then-existing Term Loans secured on a junior basis to the ~~Administrative Agent~~ Incremental Term Loans) (as of the date of incurrence of the Incremental Term Loans) receive the benefit of such more favorable terms through the then Latest Maturity Date (for the avoidance of doubt, it ~~being~~ is understood that to the extent ~~that~~ any financial maintenance covenant is added for the benefit of ~~any~~ such Incremental Term ~~Loan or Revolving Commitment Increase~~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 the Term Loans (other than any ~~corresponding~~ then-existing Term ~~Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable~~ Loans secured on a junior basis to the Incremental Term Loans) then outstanding); provided that any Incremental Term Loan Facility secured on a junior basis to all other Term Loans shall be ~~determined by Parent and~~ subject to a Second Lien Intercreditor Agreement. Notwithstanding anything to the ~~lenders thereof~~contrary in this Agreement, to the extent the terms of any Incremental Term Loan or Incremental Revolving Commitment, as applicable, are favorable to the existing Lenders, such terms may be, in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of the existing Lenders of the applicable Class or Classes of Loans without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin relating to any existing Class to achieve “fungibility” with such existing Class of Loans. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ 2.19 shall set forth (i) the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment ~~Increases. Incremental Term Loans may be made~~Increase (each, ~~and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called~~ an “~~Additional Lender~~Incremental Loan”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date ~~of such increase, there are any Revolving Credit Loans under~~ on which the ~~applicable Facility outstanding, such Revolving Credit Loans shall on or prior~~ relevant increase is requested to become effective (the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments“Increased Amount Date”), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Surgery Partners, Inc.)

Appears in 1 contract

Sources: Credit Agreement (National CineMedia, Inc.)

Appears in 1 contract

Sources: Credit Agreement (IASIS Healthcare LLC)

Incremental Credit Extensions. (a) ~~Parent may,~~ The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver~~ make a copy of such notice available to each of the Lenders), request ~~(a)~~ one or more additional tranches or, in consultation with the Administrative Agent, additions to an existing tranche of term loans (the “Incremental Term Loans”; the commitments thereunder, the “Incremental Term Loan Commitments”) or ~~(b)~~ one or more increases in the amount of the Revolving ~~Credit Commitments of~~ Commitment (any ~~Facility (each~~ such increase, a “Revolving Commitment Increase”; the commitments thereunder, the “Incremental Revolving Commitments” and, collectively, with the Incremental Term Loan Commitments, the “Incremental Commitments”); ~~provided,~~ provided that ~~upon~~ (i) after giving effect to the ~~effectiveness~~ making of ~~any Incremental Amendment referred to below and at the time that any~~ such Incremental Term Loans or the incurrence of any Revolving Commitment Increase, the aggregate principal amount of all Incremental Term Loans and Incremental Revolving Commitments incurred pursuant to this Section 2.19 (together with any Incremental Equivalent Debt incurred pursuant to Section 7.03(s) after the Closing Date) shall not exceed (x) $346,000,000 (provided that $35,000,000 of such amount under this clause (x) shall solely be available for Revolving Commitment Increases) plus (y) an unlimited additional amount, so long as on a Pro Forma Basis after the incurrence of such Incremental Term Loans and such Incremental Revolving Commitments (A) if such Incremental Loan ~~is made~~ ranks pari passu in right of security on the Collateral with the Obligations (~~and after giving effect thereto~~other than any Obligations in respect of other Incremental Loans or Refinancing Facilities secured on a junior lien basis to other Obligations), ~~(i) no Default or Event~~ the First Lien Leverage Ratio as of ~~Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for~~ the last day of the most recently ended Test Period does not exceed 3.90:1.00 and (B) if such Incremental Loan ranks junior in right of security on the Collateral to the Obligations (other than any Obligations in respect of other Incremental Loans or Refinancing Facilities secured on a junior lien basis to other Obligations), the Senior Secured Leverage Ratio as of the last day of the most recently ended Test Period does not exceed 3.90:1.00 (it being understood that (1) any Incremental Loan may be incurred under clause (y) prior to clause (x) and regardless of whether there is capacity under clause (x), (2) to the extent that both clause (x) and clause (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y), (3) any amounts incurred under clause (x), the Revolving Facility, Sections 7.03(e), 7.03(m), 7.03(r), 7.03(t), 7.03(u), 7.03(z), 7.03(bb), 7.03(s)(x) or 7.03(w), in each case, together with any amounts incurred to fund original issue discount (“OID”) and upfront fees, that is concurrently incurred with, or incurred in a single transaction or series of related transactions with, amounts under clause (y) will not count as Indebtedness for ~~which financial statements have been delivered pursuant~~ the purpose of calculating the First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, in clause (y) and (4) any portion of any Incremental Term Loans or any Incremental Revolving Commitments incurred in reliance on clause (x) may be reclassified, as the Borrower may elect from time to time, as incurred under clause (y) if the Borrower meets the applicable First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, under clause (y) at such time on a Pro Forma Basis (for purposes of clarity, with any such reclassification having the effect of increasing the Borrower’s ability to incur Indebtedness under clause (x) on and after the date of such reclassification by the amount of Indebtedness so reclassified)); provided, further, that for purposes of the calculation of the First Lien Leverage Ratio and the Senior Secured Leverage Ratio used in determining the availability of Incremental Term Loans or Incremental Revolving Commitments under this Section ~~6.01~~2.19(a), (i) any cash proceeds of any Incremental Term Loans or the Incremental Revolving Commitments, as applicable, then being incurred will not be netted for purposes of determining compliance with the First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, and (ii) the full amount of any Incremental Revolving Commitments then being incurred shall be deemed to be Indebtedness then outstanding (whether or not then incurred). Each 102 tranche of Incremental Term Loans ~~and each Revolving Commitment Increase~~ shall be in an aggregate principal amount that is not less than $~~50 million~~ 5,000,000 (~~provided,~~ provided that such amount may be less than $~~50 million~~ 5,000,000 if such amount represents all remaining availability under the limit set forth in the ~~next~~ preceding sentence)~~. Notwithstanding anything to the contrary herein~~. (b) The terms, ~~the aggregate amount~~ provisions and documentation of the Incremental ~~Term Loans and the~~ Revolving ~~Commitment Increases~~ Commitments shall be identical (other ~~than~~than with respect to upfront fees, original issue discount or similar fees and, for the avoidance of doubt, ~~those established in respect of Extended Term Loans~~ any structuring, arrangement, underwriting or ~~Extended~~ other similar fees not shared with all lenders providing the applicable Incremental Revolving ~~Credit Commitments pursuant to Section 2.16~~Commitments) ~~shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable~~ to the Revolving ~~Credit Facility (including~~ Commitments existing hereunder on the ~~maturity~~ closing date ~~in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the~~ of such Incremental Revolving ~~Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase~~Commitments. The following terms shall apply to any Incremental Term Loans established pursuant to an Incremental Amendment: (i) such Incremental Term Loans (aA) shall rank pari passu ~~or junior~~ in right of payment ~~and of security~~ with ~~the Revolving Credit Loans and the~~ all other Term Loans, (bB) shall ~~not mature earlier than~~ be secured by the ~~Maturity Date~~ Collateral on a pari passu or junior basis with ~~respect to the~~ all other Term Loans, (cC) shall not ~~have~~ be guaranteed by any person other than a ~~shorter~~ Guarantor and (D) shall not be secured by any assets other than the Collateral, (ii) the maturity date of such Incremental Term Loans shall not be earlier than the Extended Term Loan Maturity Date, (iii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be less than the remaining Weighted Average Life to Maturity of the then outstanding 2021 New Term Loans (provided that the effects of any scheduled amortization or prepayments made on the 2021 New Term Loans prior to the Increased Amount Date shall be disregarded), (iv) if such Incremental Term Loan ranks pari passu in right of security with the existing Term Loans, ~~(d) shall be entitled to share in mandatory and voluntary prepayments~~ such Incremental Term Loan may participate on a ~~ratable (~~pro rata basis or on a less than ~~ratable,~~ pro rata basis (but ~~in no event~~ not on a greater than ~~ratable~~pro rata basis) ~~basis with~~ in any mandatory prepayments under the ~~Term Loans~~Loan Documents, ~~and (e) shall bear interest at rates and be entitled to upfront fees~~ as ~~shall be determined by Parent and~~ specified in the applicable ~~new Lenders;~~ Incremental Amendment (provided, however, that if any Incremental Term Loan may participate on a greater than pro rata basis, on a pro rata basis or on a less than pro rata basis in any voluntary prepayments), (v) subject to clauses (ii) and (iii) above, the ~~All~~amortization schedule applicable to any Incremental Term Loan shall be determined by the Borrower and the lenders thereunder, (vi) the applicable all-~~In Yield for~~ in yield relating to any Incremental Term Loans ~~that are~~ incurred under ~~this~~ clause (y) of Section ~~2.14~~ 2.19(a) pursuant to such Incremental Amendment (each facility thereunder, an “Incremental Facility”), if such Incremental Term Loans are (A) secured on a pari passu basis with the Initial Term Loans and (B) made on or prior to the date that is ~~prior to~~ eighteen (18) months after the ~~twelve (12) month anniversary of the Amendment No. 2 Effective~~ Closing Date, shall not exceed the ~~All~~all-~~In Yield with respect~~ in yield applicable to the Initial Term Loans by more than ~~50 basis points, then~~ 0.50% per annum unless the ~~interest rate margins~~ all-in yield applicable to the Initial Term Loans ~~shall be~~ is increased so that the all-in yield applicable to the applicable Incremental Facility does not exceed the all-in yield applicable to the Initial Term Loans by more than 0.50% per annum; provided that, in determining the all-in yield applicable to the Initial Term Loans and the applicable Incremental Facility, (A) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Initial Term Loans or the applicable Incremental Facility in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if less, the remaining life to maturity of the applicable Incremental Facility), (B) structuring, arrangement, underwriting, ticking and commitment and other fees not shared with all lenders providing the Initial Term Loans or the applicable Incremental Facility, and, if applicable, consent fees for an amendment paid generally to consenting lenders, shall be excluded and (C) if the applicable Term Benchmark Rate in respect of such Incremental Facility includes a floor in excess of 1.00%, or the Alternate Base Rate in respect of such Incremental Facility includes a floor in excess of 2.00%, such excess shall be ~~only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant~~ equated to ~~documentation to be determined by Parent; provided that,~~ interest margin for purposes of determining any increase to the ~~extent such terms and documentation are not consistent with~~ applicable all-in yield under the Initial Term Loans (except to the extent ~~permitted by clauses~~ such floor does not result in an increase in interest rate) and any increase in the all-in yield applicable to the Initial Term Loans required due to the application of such floor on any Incremental Facility shall be effected solely through an increase in (aor implementation of, as applicable) ~~through~~ such floor in respect of the Initial Term Loans, (evii) subject to clause (vi) above), ~~they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that~~ any ~~financial maintenance covenant is added for the benefit of~~ fees payable in connection with any such Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by ~~Parent~~ the Borrower and the ~~lenders thereof.~~arrangers providing for such Incremental Term Loan and (viii) except as otherwise required or permitted above, all other terms of such Incremental Term Loans (other than (1) provisions applicable only to periods after 103 (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ 2.19 shall set forth (i) the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment ~~Increases~~Increase (each, an “Incremental Loan”), as applicable, and (ii) the date on which the relevant increase is requested to become effective (the “Increased Amount Date”). Incremental Term Loans ~~may be made,~~ and Revolving Commitment Increases may be ~~provided,~~ made by any existing Lender (but no existing Lender shall have any obligation to make any Incremental Term Loan or Revolving Commitment Increase, as applicable, except to the extent that it has agreed to do so pursuant to an Incremental Amendment) or by any other ~~bank or other financial institution~~ Additional Lender (~~any such other bank or other financial institution being called an “Additional Lender”); provided~~the Term Lenders, ~~that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s~~ Revolving Lenders or Additional ~~Lender’s~~ Lenders making such Incremental Term Loans or ~~providing such~~ Revolving Commitment ~~Increases if~~ Increase, as applicable, collectively, the “Incremental Lenders”), provided, that each Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Incremental Lender to the extent any such consent would be required under Section ~~10.06(b~~10.04(b) for an assignment of Revolving Loans or to such Incremental Lender. (d) Incremental Term Loan Commitments and/or Incremental Revolving ~~Credit~~ Commitments, as applicable, ~~to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases~~ shall become Commitments ~~(or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, each Incremental Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ Subject to this Section 2.19, the Incremental Amendment ~~shall~~shall be on the terms, and pursuant to documentation, to be determined by the Borrower and the Incremental Lenders providing the Incremental Term Loan Commitments and/or Incremental Revolving Commitments, as applicable. Each Incremental Term Loan Commitment and Incremental Revolving Commitment, as applicable, shall become effective as of the applicable Increased Amount Date pursuant to the applicable Incremental Amendment; provided that (i) (x) if the applicable Incremental Term Loan Commitment and/or Incremental Revolving Commitment is not being provided in connection with a Limited Condition Transaction, no Event of Default exists or would exist after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Commitment, as applicable and (y) if such Incremental Term Loan Commitment and/or Incremental Revolving Commitment is being provided in connection with a Limited Condition 104 Transaction, no Event of Default under Section 8.01(a), 8.01(f) or 8.01(g) shall exist on the applicable Increased Amount Date (provided that the condition set forth under this clause (i) shall not be required to be satisfied if waived (or otherwise not required) by Persons holding more than 50% of the applicable Incremental Term Loan Commitments (in the case of an Incremental Term Loan) and/or Incremental Revolving Commitments (in the case of a Revolving Commitment Increase), as applicable) and (ii) in connection with the effectiveness of any Incremental Term Loan Commitments and/or Incremental Revolving Commitments, and the incurrence of any related Incremental Loans, there shall be no requirement under this Section 2.19 for the Borrower to bring down the representations and warranties on the Increased Amount Date under the Loan Documents unless requested by the Persons holding more than 50% of the applicable Incremental Term Loan Commitments (in the case of Incremental Term Loans) and/or Incremental Revolving Commitments (in the case of a Revolving Commitment Increase), as applicable (provided that, in the case of Incremental Loans or Incremental Term Loan Commitments and/or Incremental Revolving Commitments, as applicable, used to finance a Limited Condition Transaction, the Specified Representations (conformed for such Limited Condition Transaction, as applicable) shall be required to be true and correct in all material respects as of the Increased Amount Date if requested by the Persons holding more than 50% of the applicable Incremental Term Loan Commitments (in the case of an Incremental Term Loan) and/or Incremental Revolving Commitments (in the case of a Revolving Commitment Increase), as applicable). The Borrower will use the proceeds, if any, of the Incremental Term Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases unless it so agrees. (e) Any Incremental Amendment may, without the consent of ~~the Agents or the~~ any Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and ~~Parent~~ the Borrower (i) to effect the terms thereof, to the extent such terms are permitted under this Section 2.19 and (ii) to effect technical and corresponding amendments to this Agreement and the other Loan Documents to effect the provisions of this Section 2.19. (f) This Section 2.19 shall supersede any provisions in Section 2.14, ~~including without limitation~~ 2.15 or 10.08 to ~~incorporate~~ the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish contrary. (g) Upon any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments Increase pursuant to this Section ~~2.14~~2.19, (a) each of the Revolving ~~Credit Lender~~ Lenders holding Revolving Commitments immediately prior to such ~~increase will automatically and without further act be deemed to have assigned~~ Revolving Commitment Increase shall assign to each ~~Lender providing a portion~~ of the Revolving ~~Commitment Increase (each a “~~Lenders having an Incremental Revolving ~~Commitment Increase Lender”)~~Commitment, and each of the Revolving Lenders having an Incremental Revolving Commitment shall purchase from each of the Revolving Lenders holding Revolving Commitments immediately prior to such Revolving Commitment Increase, at the principal amount thereof, such interests in the Incremental Revolving Loans outstanding on the closing date of such Revolving Commitment Increase ~~Lender will automatically and without further act~~ as shall be ~~deemed to have assumed (~~necessary in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such order that, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line~~ such Revolving Loans will be held by ~~each~~ existing Revolving ~~Credit Lender (including each such~~ Lenders and Revolving Lenders having an Incremental Revolving Commitment ~~Increase Lender) will equal~~ ratably in accordance with their Revolving Commitments after giving effect to the ~~percentage~~ addition of such Incremental Revolving Commitments to the ~~aggregate~~ Revolving ~~Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and~~ Commitments, (b) ifeach Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, ~~on the date of such increase~~for all purposes, ~~there are any~~ a Revolving ~~Credit Loans under the applicable Facility outstanding, such~~ Loan and (c) each Revolving ~~Credit Loans~~ Lender having an Incremental Revolving Commitment shall ~~on or prior~~ become a Lender with respect to the ~~effectiveness of such~~ Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid Commitments and ~~any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05~~all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum ~~borrowing, pro rata~~ borrowing and ~~pro rata payment~~ prepayment requirements ~~contained elsewhere~~ in Section 2.02 and 2.12 of this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.. 105 Section

Appears in 1 contract

Sources: Credit Agreement (Surgery Partners, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of Term Loans or add one or more additional tranches of term loans (any such Term Loans or additional tranche of term loans, the “Incremental Term Loans”) ~~or (b)~~ and/or one or more increases in the ~~amount of the~~ Revolving Credit Commitments of any ~~Facility~~ Class (~~each such increase,~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”)~~; provided~~. Notwithstanding anything to contrary herein, ~~that upon~~ the ~~effectiveness~~ aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) the Unrestricted Incremental Amount, plus (ii) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, after giving Pro Forma Effect thereto and after giving Pro Forma Effect to any Permitted Acquisition and any other Specified Transaction consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Facilities), (A) in the case of any Incremental ~~Amendment referred to below and at~~ Facility or Permitted Alternative Incremental Facilities Debt secured by Liens on Collateral that are pari passu with the ~~time that any such Incremental~~ Liens securing the Initial Term ~~Loan is made (and after giving effect thereto)~~Loans, ~~(i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09~~ the First Lien Senior Secured Leverage Ratio for the most recently ended Test Period shall not exceed (1) 3.20:1.00 or (2) if the proceeds of such Incremental Facility or Permitted Alternative Incremental Facilities Debt are used in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the greater of (x) 3.20:1.00 and (y) the First Lien Senior Secured Leverage Ratio immediately prior to the incurrence of such Incremental Facility or Permitted Alternative Incremental Facilities Debt and related transactions, (B) in the case of any Incremental Facility or Permitted Alternative Incremental Facilities Debt secured by Liens on Collateral that are junior to the Liens securing the Initial Term Loans, the Total Senior Secured Leverage Ratio for ~~which financial statements have been delivered pursuant~~ the most recently ended Test Period shall not exceed (1) 4.00:1.00 or (2) if the proceeds of such Incremental Facility or Permitted Alternative Incremental Facilities Debt are used in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the greater of (x) 4.00 to ~~Section 6.01. Each tranche~~ 1.00 and (y) the Total Senior Secured Leverage Ratio immediately prior to the incurrence of such Indebtedness and any related transactions and (C) in the case of any Incremental Facility or Permitted Alternative Incremental Facilities Debt that is unsecured or is secured solely by assets that do not constitute Collateral, either (I) the Total Leverage Ratio for the most recently ended Test Period shall not exceed (x) 4.25:1.00 or (y) if the proceeds of such Incremental Facility or Permitted Alternative Incremental Facilities Debt are used in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the greater of (1) 4.25 to 1.00 or (2) the Total Leverage Ratio immediately prior to the incurrence of such Indebtedness and any related transactions or (II) the Interest Coverage Ratio is not less than either (x) 2.00 to 1.00 or (y) if the proceeds of such Incremental Facility or Permitted Alternative Incremental Facilities Debt are used in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the lesser of (1) 2.00 to 1.00 or (2) the Interest Coverage Ratio immediately prior to the incurrence of such Indebtedness and any related transactions; provided however that notwithstanding the foregoing the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, in each case, incurred under this clause (C) that is secured by assets that do not constitute Collateral, shall not exceed $25,000,000 (it being understood that Incremental Facilities may be incurred pursuant to this clause (ii) prior to utilization of the Unrestricted Incremental Amount and in all respects subject to Section 1.09(b)) and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving ~~Commitment Increase~~ Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (ii), the “Incremental Incurrence Test” and, together with the Unrestricted Incremental Amount, the “Maximum Incremental Facilities Amount”). Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $~~50 million (provided~~5,000,000 in case of Incremental Term Loans or $1,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amountabove. (b) Any ~~Revolving Commitment Increase~~ Incremental Term Loans (other than Refinancing Term Loans) (i) shall not be on guaranteed by any Subsidiary that is not a Loan Party under this Agreement and, except to the ~~same terms and~~ extent permitted pursuant to the ~~same documentation applicable~~ proviso in clause (a)(ii)(C) above, shall not be secured by any assets of the Borrower or any of its Subsidiaries that is not Collateral, and such Incremental Term Loans may, at the discretion of the Borrower, (A) rank pari passu in right of payment with the Initial Term Facility, (B) be subordinated in right of payment to the ~~Revolving Credit~~ Initial Term Facility, (C) be secured on a pari passu basis with the Initial Term Facility, (D) be secured on a junior basis to the Initial Term Facility or (~~including~~ E) be unsecured; provided that if subordinated or secured on a junior basis (and not incurred under this Agreement), any intercreditor or lien subordination arrangements must be reasonably satisfactory to the ~~maturity date~~ Administrative Agent, which in ~~respect thereof but excluding up-front commitment~~ the case of clauses (C) and (D) above, shall be substantially similar to the intercreditor and lien subordination arrangements set forth in the applicable Acceptable Intercreditor Agreement, (ii) may provide for the ability to participate on a pro rata basis or ~~similar fees~~less than pro rata basis in any voluntary or mandatory prepayments of the Initial Term Loans, (iii) shall have interest rate, upfront fees and original issue discount and (subject to clauses (iv) and (v)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that if the Effective Yield of any Incremental Term Loans incurred on or prior to the MFN Sunset Date exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to the Initial Term Loans shall be adjusted such that the Effective Yield of the Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum (the foregoing, collectively, the “MFN Adjustment”); provided, ~~the Applicable Rate~~ further, that any increase in Effective Yield with respect to the ~~Revolving Credit Facility may be increased if necessary~~ Initial Term Loans due to ~~be consistent with that required by~~ the ~~lenders providing the Revolving Commitment Increase. The~~ application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the Initial Term Loans ~~(a)~~ shall ~~rank pari passu or junior~~ be effected solely through an increase in ~~right of payment and of security with~~ the ~~Revolving Credit Loans and~~ interest rate floor applicable to the Initial Term Loans), (biv) other than in the case of any Customary Bridge Loans, any Incremental Term Loan shall not ~~mature~~ have a final maturity date earlier than the Maturity Date ~~with respect~~ applicable to the Initial Term Loans, (cv) other than in the case of any Customary Bridge Loans, any Incremental Term Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Initial Term Loans, (dvi) ~~shall be entitled~~ [reserved], (vii) subject to ~~share~~ clause (iii) above, any fees payable in ~~mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis~~ connection with ~~the~~ such Incremental Term ~~Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall~~ Loans will be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders; provided, however, that if the All-In Yield for~~ arrangers and/or lenders providing such Incremental Term Loans ~~that are incurred under~~ and (viii) except to the extent otherwise permitted by this Section ~~2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date~~2.14, shall ~~exceed~~ have terms and conditions determined by the ~~All-In Yield with respect to~~ Borrower and the ~~Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that~~ arrangers and/or lenders providing such ~~excess shall be only 50 basis points. The~~ Incremental Term ~~Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent~~Loans; provided that, to the extent such terms and ~~documentation~~ conditions are not ~~consistent with~~ the same as the Initial Term Loans in any material respect (~~except to~~ as determined in good faith by the ~~extent permitted by clauses (a) through (e) above~~Borrower), ~~they~~ such terms shall be reasonably satisfactory to the Administrative ~~Agent (~~Agent, it being understood ~~to the extent~~ that ~~any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase,~~ no consent shall be required from the Administrative Agent ~~or any Lender~~ for terms and conditions that (A) are more favorable to the Lenders under the Initial Term Facility than the Initial Term Loans, to the extent that ~~such financial maintenance covenant is also~~ they are added for the benefit of the Term Lenders hereunder (which such amendments may be effected without consent of the Lenders under the Initial Term Loans and including, for the avoidance of doubt, at the option of the Borrower, any ~~corresponding existing~~ increase in the applicable interest rate margin related to the Initial Term ~~Loans) and subject~~ Loans to ~~clauses (b) and (c) above, the amortization schedule (if any)~~ bring such applicable to interest rate margin in line with the Incremental Term Loans ~~shall be determined by Parent and~~ to achieve fungibility with the ~~lenders thereof~~Initial Term Loans) or (B) they apply to periods after the then Latest Maturity Date with respect to the Term Loans. (c) Any Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate, upfront fees and original issue discount and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) any Incremental Revolving Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments, (v) such Incremental Revolving Commitments have solely the same guarantors and are secured solely by the same assets as the Revolving Credit Commitments and (vi) except to the extent otherwise permitted by this Section 2.14, shall have the same terms and conditions as the Revolving Credit Facility; provided that, to the extent such terms and conditions are not the same as the Revolving Credit Facility in any material respect (as determined in good faith by the Borrower), such terms shall be reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that (A) are more favorable to the Lenders under the Revolving Credit Facility than the terms and conditions of the Revolving Credit Facility, to the extent that they are added for the benefit of the Lenders under the Revolving Credit Facility (which such amendments may be effected without consent of the Lenders under the Revolving Credit Facility) or (B) they apply to periods after the then Latest Maturity Date with respect to the Revolving Credit Facility. (d) Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Commitments shall be ~~made~~reasonably satisfactory to the Borrower and the Administrative Agent and, in the case of Incremental Revolving Commitments, the L/C Issuer and ~~Revolving Commitment Increases may be provided~~Swing Line Lender (any such bank, ~~by any~~ financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, ~~if any, and~~ the Administrative ~~Agent~~Agent and, in the case of any Incremental Revolving Commitments, each L/C Issuer and Swing Line Lender. ~~The~~ No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the ~~Agents or the Lenders, effect~~ Additional Lenders with respect to such ~~amendments to this Agreement and the other Loan Documents as may be necessary or appropriate~~Incremental Facility Amendment and, in the ~~reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect~~ case of Incremental ~~Term Loans as “Lenders”~~Revolving Commitments, the L/C Issuer and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this AgreementSwing Line Lender. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Commitments, unless it so agrees~~. (d) Upon each increase~~ . Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the ~~Revolving Credit Commitments pursuant~~ opinion of the Administrative Agent, to effect the provisions of this Section 2.14~~, (a) each Revolving Credit Lender immediately prior~~ . Any Incremental Facility Amendment shall be pursuant to ~~such increase will automatically and without further act~~ documentation to be ~~deemed to have assigned to each Lender providing a portion of~~ mutually agreed by the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participationsBorrower, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceeach Additional Lender. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Facility Amendment ~~shall be subject to~~shall, ~~if requested by the Administrative Agent, receipt~~ unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties ~~contained~~ of each Loan Party set forth in ~~Article V~~ Section 4.02 being true and ~~the other Loan Documents~~ correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date) and (orii) no Event of Default shall exist, ~~with respect~~ or would immediately result from such issuance of the Incremental Facility; provided in the case of Incremental Facilities the proceeds of which will be used to finance a Limited Condition Transaction, (1) the only representations and warranties ~~modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except~~ that will be required to ~~the extent that such representations and warranties specifically refer to an earlier date, in which case they shall~~ be true and correct in all material respects ~~(or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects)~~ as of ~~such earlier date.~~ the applicable Incremental Facility Closing Date shall be the Specified Representations and (g2) ~~This~~ Section ~~2.14~~ 4.02(b) shall ~~supersede~~ be limited to Specified Events of Default. The proceeds of any ~~provisions~~ Incremental Term Loans will be used for general corporate purposes (including (without limitation) Permitted Acquisitions) and for any other purpose not prohibited hereunder. Upon each increase in ~~Section 2.13 or 10.01 to the contrary.~~the

Appears in 1 contract

Sources: Credit Agreement (Holley Inc.)

Incremental Credit Extensions. (a) ~~Parent~~ The Borrower may, at any time or and from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or increases in existing tranches of term loans (the “Incremental Term Loans”~~) or~~ ), (b) one or more increases in the amount of the Revolving Credit Commitments of any Facility (each such increase, a “Revolving Commitment Increase”) or (c) one or more additional tranches of Revolving Credit Commitments (each such commitment, together with the Revolving Commitment Increases, an “Incremental Revolving Credit Facility”; together with a Revolving Commitment Increase, an “Incremental Revolving Commitment”; and together with Incremental Term Loans and Revolving Commitment Increases, “Incremental Facilities”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), subject to Section 2.14(e), (i) no ~~Default or~~ Event of Default shall exist and (ii) ~~Parent~~ the Borrower shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term ~~Loans and~~ Loans, each Revolving Commitment Increase and each Incremental Revolving Credit Facility shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term ~~Loans and~~ Loans, the Revolving Commitment Increases and each Incremental Revolving Credit Facility (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms as the Revolving Credit Facility and any Incremental Revolving Credit Facility shall be pursuant to the same documentation applicable to the Revolving Credit Facility (including (solely in the case of a Revolving Commitment Increase) the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (ai) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (bii) shall not mature earlier than the Maturity Date with respect to the Term Loans, (ciii) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (div) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (ev) shall bear interest at rates and be entitled to upfront fees as shall be determined by ~~Parent~~ the Borrower and the applicable new Lenders; provided, however, that if the All-In Yield for the Incremental Term Loans ~~that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date,~~ shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by ~~Parent~~the Borrower; provided that, to the extent such terms and documentation are not consistent with the Term Loans with respect to periods prior to the Latest Maturity Date for the Term Loans (except to the extent permitted by clauses (ai) through (ev) above), they shall be reasonably satisfactory to the Term Loan Administrative Agent (it being understood to the extent that any financial maintenance covenant is added or a restrictive covenant is made more restrictive for the benefit of any Incremental ~~Term Loan or Revolving Commitment Increase~~Facility, no consent shall be required from ~~the~~ any Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added or the corresponding restrictive covenant is made similarly more restrictive for the benefit of any corresponding existing Term Loans) and subject to clauses (bii) and (ciii) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by ~~Parent~~ the Borrower and the ~~lenders~~ Lenders thereof. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Commitments. Incremental Term Loans may be made, and Incremental Revolving ~~Commitment Increases~~ Commitments may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving ~~Commitment Increases~~ Commitments if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Incremental Revolving ~~Commitment Increases~~ Commitments shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and ~~Parent~~ the Borrower to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the ~~definition~~ definitions of Required Lenders and Required Class Lenders and to establish any tranche of Incremental Term Loans or any Incremental Revolving Credit Facility as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as ~~Parent~~ the Borrower and the applicable Lenders and Additional Lenders shall agree. The ~~Borrowers~~ Borrower may use the proceeds of the Incremental Term Loans and Incremental Revolving ~~Commitment Increases~~ Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Commitments, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition or Investment may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition or Investment may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), ) and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the ~~Administrative~~ Collateral Agent in order to ensure that such Incremental Term Loans or ~~Revolving Commitment~~ Incremental Credit Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier dateDocuments. (g) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may issue one or more series of Incremental Equivalent Debt in an aggregate amount not to exceed, as of the date of and after giving effect to the issuance of any such Incremental Equivalent Debt, the aggregate amount of Incremental Facilities permitted to be incurred under this Section 2.14, provided that the incurrence of any Incremental Equivalent Debt shall reduce, on a dollar-for-dollar basis, the aggregate amount of Incremental Facilities permitted to be incurred under this Section 2.14. (h) The issuance of any Incremental Equivalent Debt pursuant to this Section 2.14 shall (i) in all cases be subject to the terms and conditions set forth in Section 2.14(a), 2.14(b)(i), 2.14(b)(ii), 2.14(b)(iii), 2.14(b)(iv), and 2.14(b)(v) (other than the proviso) and (ii) the covenants, events of default, guarantees, and other terms of such Incremental Equivalent Debt shall not be materially more restrictive, taken as a whole and as determined by the Borrower in good faith, to the Borrower and the Restricted Subsidiaries than those set forth in this Agreement (other than with respect to interest rate and redemption provisions), except for covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of issuance. (i) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Halyard Health, Inc.)

Incremental Credit Extensions. (a) ~~Parent may~~Subject to the terms and conditions set forth in this Section 2.16, at any time or and from time to time after the ~~Closing Date~~Initial Second Amendment Effective Date (i) the Borrower shall have the right, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), to request an increase of the aggregate then outstanding Revolving Loan Commitments on the same terms and conditions, including the Applicable Margin and other pricing matters (aexcept that any commitment, arrangement, upfront or similar fees may be agreed to among the Borrower, the existing Lenders increasing their Revolving Commitments and any Additional Lenders without the consent of any other party to this Agreement) as the then-existing Revolving Loan Commitments (a “Revolving Commitment Increase”) and/or (ii) the Borrower shall have the right, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), to request the establishment of one or more ~~additional~~ tranches of new term loans (the “Incremental Term Loans”~~) or (b) one or more increases~~ ), in a maximum aggregate principal amount for all such Revolving Commitment Increases and Incremental Term Loans not to exceed the sum of $500,000,000 plus the amount of Commitments and/or Loans of non-consenting Lenders replaced pursuant to a Incremental Amendment within 30 days after any termination of their Commitments and/or repayment of their Loans under Section 14.12(b) (any such Revolving Commitment Increase and/or tranche of Incremental Term Loans hereinafter referred to as an “Uncommitted Incremental Facility”), provided that (i) each such request of the Borrower for a Revolving ~~Credit Commitments~~ Commitment Increase shall be deemed to be an offer to each Lender (other than a Defaulting Lender) to increase its Revolving Loan Commitment by its RL Percentage of the proposed increased amount, (ii) each Lender, in its sole discretion, may either (A), within 10 Business Days of the date of such request, agree to increase its Revolving Loan Commitment by all or a portion of the offered amount or (B) decline to increase its Revolving Loan Commitment; provided that, to the extent an existing Lender does not agree to increase its Revolving Loan Commitment, such non-allocated increase may be provided by Additional Lenders as set forth in clause (c) below and/or the other existing Lenders in a manner determined by the Borrower, in consultation with the Administrative Agent, (iii) both at the time of any ~~Facility (each~~ such ~~increase, a “Revolving Commitment Increase”); provided, that~~ request and upon the effectiveness of any Incremental Amendment referred to ~~below~~ below, no Default or Event of Default shall exist or result therefrom and at the time that any such Incremental Term Loan is made (and after giving effect thereto~~), (i~~) no Default or Event of Default shall exist or result therefrom, (iv) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, all of the representations and warranties of each Credit Party set forth in Section 9 and in each other Credit Document shall be true and correct in all material respects as of such time (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (iiy) ~~Parent~~ any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such date), (v) any such Uncommitted Incremental Facility shall benefit from the guaranties provided pursuant to the Guaranties, shall be secured by the same Collateral securing the Obligations, shall rank pari passu in right of payment with the Obligations, and shall rank pari passu in right of security with the Obligations and (vi) prior to or substantially concurrently with the effectiveness of any Incremental Amendment, (1) the Borrower, the Administrative Agent, the applicable Lenders, if any, and the applicable Additional Lenders (as defined below), if any, shall have executed and delivered such Incremental Amendment, (2) Holdings shall have delivered to the Administrative Agent an officer’s certificate (accompanied to the extent applicable by calculations in reasonable detail) executed by a Responsible Officer of Holdings certifying that (I) the relevant Uncommitted Incremental Facility (and the Indebtedness thereunder) may be incurred in compliance with Holdings’ and its Subsidiaries’ material Indebtedness and (II) after giving effect to any incurrence of Indebtedness under the relevant Uncommitted Incremental Facility, Holdings is in compliance with each of the covenants set forth in Sections 11.11 and 11.12, in each case, determined on a Pro Forma ~~Compliance with Section 7.09 for~~ Basis as of the last day of the Test Period most recently ended ~~Test Period~~ for which financial statements have been ~~delivered~~ (or were required to be) furnished to the Administrative Agent pursuant to Section ~~6.01~~10.01(a) or (b), as the case may be, (3) the Administrative Agent shall have received a legal opinion or legal opinions from counsel to the Borrower and all other documentation reasonably requested by it in connection with the relevant Uncommitted Incremental Facility which shall be reasonably satisfactory to it, (4) the Borrower shall take all actions reasonably requested by the Administrative Agent with respect to the Collateral covered by the Security Documents, including without limitation, the Mortgages as a result of such increase and (5) the Borrower shall have paid such fees and other compensation to the Additional Lenders providing Revolving Commitment Increases or Incremental Term Loans and to the Administrative Agent as the Borrower and such Additional Lenders and Administrative Agent shall agree. Each tranche of Incremental Term Loans shall have terms and conditions as mutually agreed by the Borrower and such Additional Lenders; provided, however, that (i) if the “effective yield” per annum applicable to a given tranche of Incremental Term Loans (which, for such purposes only, shall be deemed to take account of any interest rate benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (x) the weighted average life of such loans and (y) four years) 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) determined as of the initial funding date for such Incremental Term Loans exceeds the “effective yield” per annum then applicable to any Loans or any other tranche of Incremental Term Loans (determined on the same basis as provided in the preceding parenthetical, with the comparative determination to be made in the reasonable judgment of the Administrative Agent consistent with generally accepted financial practice) by more than (I), in the case of Incremental Term Loans constituting A Term Loans, 0.25% or (II), in the case of Incremental Term Loans constituting B Term Loans, 0.75% (in each case, the amount of such excess being the “Yield Differential”), the Applicable Margin for such existing Loans (including, for the avoidance of doubt, Revolving Loans) subject to a Yield Differential shall automatically be increased by the Yield Differential effective upon the making of the applicable Incremental Term Loans, (ii) the final stated maturity date for a given tranche of Incremental Term Loans shall be the same as or later than the latest Maturity Date hereunder and (iii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the Weighted Average Life to Maturity applicable to the then outstanding Term Loans, if any. (b) Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $25,000,000 and shall be in an increment of $5,000,000 and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $~~50 million~~ 25,000,000 and shall be in an increment of $5,000,000 (~~provided,~~ provided that in each case such amount may be less ~~than $50 million~~ (x) if such amount represents all remaining availability under the limit set forth in the ~~next sentence). Notwithstanding anything to~~ first sentence of Section 2.16(a) or (y) such amount represents the ~~contrary herein, the aggregate~~ amount of ~~the Incremental Term~~ Commitments and/or Loans ~~and the Revolving Commitment Increases (other than, for the avoidance~~ of ~~doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments~~ non-consenting Lenders replaced pursuant to an Incremental Amendment within 30 days after any termination of their Commitments and/or repayment of their Loans under Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees14.12(b); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from ~~Parent~~ the Borrower pursuant to ~~this~~ Section ~~2.14~~ 2.16(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (but no existing Lender will have any right (except to the extent expressly provided in clause (i) of the proviso to Section 2.16(a) in the case of the right of existing Lenders to provide portions of any Revolving Commitment Increase) or obligation to provide all or any portion of any Incremental Term Loan or any portion of any Revolving Commitment Increase) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”)~~; provided~~, provided that (i) no such existing Lender or Additional Lender may at such time be a Defaulting Lender and (ii) any Additional Lender which is not an existing Lender (or in the case of a Revolving Commitment Increase, which is not an existing RL Lender) shall be subject to the approval of, (x) in the case of Revolving Commitment Increases, the Administrative Agent, ~~each Swing Line~~ the Issuing Lender, the Swingline Lender and the Borrower and (y) in the case of Incremental Term Loans, the Administrative Agent and the Borrower (in the case of clauses (x) and (y), each ~~L/C Issuer shall have consented (~~such approval not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender). Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing ~~Revolving Credit~~ RL Lender, an increase in such Lender’s ~~applicable~~ Revolving ~~Credit~~ Loan Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other ~~Loan~~ Credit Documents, executed by the ~~applicable~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional ~~Lender~~Lender agreeing to provide such Commitment, if any, the Administrative Agent and the ~~Administrative~~ Collateral Agent. The Incremental Amendment ~~shall~~may, without the consent of ~~the Agents or the Lenders~~any Lender, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and ~~Parent~~ the Borrower, to effect the provisions of this Section ~~2.14, including without limitation~~ 2.16; provided that no Lender shall be required to ~~incorporate the applicable lenders in respect of~~ provide any Revolving Commitment Increase or any Incremental Term Loans ~~as “Lenders”, and the~~ unless such Lender (i) has agreed in its sole discretion to provide such Revolving Commitment Increase and/or Incremental Term ~~Loans as “~~Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable, and (ii) has entered into an Incremental Amendment in connection therewith. The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into any such Incremental Amendment. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 2.16(a) and such ~~further~~ other conditions as ~~Parent and~~ the ~~applicable Lenders and Additional Lenders~~ parties thereto shall agree. The ~~Borrowers may~~ Borrower will use the ~~proceeds~~ Net Cash Proceeds of the Incremental Term Loans ~~and~~ and/or Revolving Loans under Revolving Commitment Increases for ~~any purpose~~ working capital needs and other general corporate purposes of the Credit Parties and their Subsidiaries not ~~prohibited by~~ in contravention of this Agreement. No The Administrative Agent shall promptly notify each Lender as to each Incremental Facility Closing Date, and at such time (i) the Commitments under, and for all purposes of, this Agreement shall be ~~obligated to provide any~~ increased by the aggregate amount of the respective Revolving Commitment Increases or Incremental Term Loans and (ii) within a reasonable time after the effective date of any such increase, the Administrative Agent shall, and is hereby authorized and directed to, revise Schedule 1.01A to reflect the revised Revolving Loan Commitments of the RL Lenders (including any Additional Lender) or ~~Revolving Commitment Increases~~Incremental Term Loans of the TL Lenders (including any Additional Lender), ~~unless it so agrees~~whereupon such revised Schedule 1.01A shall replace the old Schedule 1.01A and become part of this Agreement. (d) ~~Upon~~ Notwithstanding anything to the contrary in this Agreement, upon each increase in ~~the~~ any Revolving ~~Credit~~ Loan Commitments pursuant to this Section ~~2.14~~2.16, (aA) each ~~Revolving Credit~~ RL Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such ~~Revolving Credit ▇▇▇▇▇▇~~RL Lender’s participations hereunder in outstanding Letters of Credit and ~~Swing Line~~ Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in ~~Swing Line~~ Swingline Loans held by each ~~Revolving Credit~~ RL Lender (including each such Revolving Commitment Increase Lender) will equal ~~the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by~~ such ~~Revolving Credit~~ RL Lender’s RL Percentage determined after giving effect to such increase in Revolving ~~Credit Commitment~~ Loan Commitments (subject to any reallocation of such participations pursuant to Section 2.13) and (bB) if, on the date of such increase, there are any Revolving ~~Credit~~ Loans ~~under the applicable Facility~~ outstanding, such Revolving ~~Credit~~ Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving ~~Credit~~ Loans ~~under the applicable Facility~~ made hereunder (reflecting such increase in Revolving ~~Credit~~ Loan Commitments)) to the extent necessary so that the RL Lenders participate in each outstanding Revolving Loan pro rata on the basis of their RL Percentages determined after giving effect to such increase in Revolving Loan Commitments, which prepayment shall be accompanied by accrued interest on the Revolving ~~Credit~~ Loans being prepaid and any ~~reasonable and documented out-of-pocket~~ costs incurred by any Lender in accordance with Section ~~3.05~~2.10. Without limiting the obligations of the Borrower provided for in this Section 2.16, the Administrative Agent and the Lenders agree to use commercially reasonable efforts to attempt to minimize the costs of the type referred to in Section 2.10 which the Borrower would otherwise incur in connection with the implementation of an increase in the Revolving Loan Commitments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the ~~immediately~~ second preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (CF Industries Holdings, Inc.)

Appears in 1 contract

Sources: Credit Agreement (Harsco Corp)

Appears in 1 contract

Sources: Term Loan Credit Agreement (Owens & Minor Inc/Va/)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrowers may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a) one or more additional tranches of term loans (the “Incremental Term Loans”) or (b)~~ one or more increases in the Revolving Credit Commitments of any Class (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed (i) the Unrestricted Incremental First Lien Amount minus the aggregate principal amount of Incremental Term Loans and Incremental Equivalent Debt (in each case as defined in the Term Loan Credit Agreement) incurred on or prior to the date of the incurrence of any such Incremental Revolving Commitments in reliance on the Unrestricted Incremental Amount (as defined in the Term Loan Credit Agreement) plus (ii) the amount of any voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date and voluntary prepayments of other Indebtedness secured on a pari passu basis with the Revolving Credit LoansAmendment No. 4 Effective Date (excluding (A) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (B) voluntary prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Amendment No. 4 Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) (~~each such increase~~this clause (ii), a the “Voluntary Prepayment Amount”) plus (iii) unlimited additional Incremental Revolving ~~Commitment Increase”); provided~~Commitments and Incremental Equivalent Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving Pro Forma Effect thereto and after giving effect ~~thereto~~to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Revolving Commitments or Incremental Equivalent Debt, as the case may be), ~~(i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09~~ the First Lien Leverage Ratio for the most recently ended Test Period ~~for which financial statements have been delivered~~ does not exceed (x) 2.05:1.00 or (y) if such Incremental Revolving Commitments are made in connection with a Permitted Acquisition or any other similar Investment not prohibited hereunder, the First Lien Leverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom) immediately prior to the consummation of such Permitted Acquisition or other similar Investment and the making of such Incremental Revolving Commitments, it being understood and agreed that Incremental Revolving Commitments may be incurred pursuant to ~~Section 6.01~~this clause (iii) prior to utilization of the Unrestricted Incremental First Lien Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Commitments and/or any Incremental Equivalent Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the “Incremental Incurrence Test”). Each ~~tranche of~~ Incremental ~~Term Loans and each~~ Revolving Commitment ~~Increase~~ shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $~~50 million (provided~~10,000,000, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in above. Each Incremental Revolving Commitment shall be guaranteed by the ~~next sentence). Notwithstanding anything to~~ Guarantors that guarantee the ~~contrary herein,~~ other Obligations hereunder and secured by a Lien on the ~~aggregate amount~~ Collateral securing all of the ~~Incremental Term Loans and the Revolving Commitment Increases (~~other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities AmountObligations hereunder. (b) [Reserved]. (c) Any Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrowers and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit ~~Facility~~ Commitments and (~~including~~ B) in the case of an Additional Revolving Credit Commitment, the maturity date ~~in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the~~ of such Additional Revolving Credit ~~Facility may~~ Commitment shall be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature no earlier than the Maturity Date ~~with respect~~ applicable to the ~~Term Loans~~Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments)), (ciii) any Incremental Revolving Commitments shall not have a ~~shorter~~ final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Commitments shall not have a Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the ~~Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans,~~ Revolving Credit Commitments and (ev) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent otherwise permitted by ~~clauses (a) through (e) above)~~this Section 2.14, ~~they~~ shall be have the same terms and conditions as the Revolving Credit Commitments or such terms as are reasonably satisfactory to the Administrative ~~Agent (~~Agent, it being understood ~~to the extent~~ that ~~any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase,~~ no consent shall be required from the Administrative Agent ~~or any Lender~~ for terms and conditions that are more restrictive than the Revolving Credit Commitments to the extent that ~~such financial maintenance covenant is also~~ they apply to periods after the then Latest Maturity Date with respect to the Amendment No. 4 Revolving Credit Facility or are otherwise added for the benefit of ~~any corresponding existing Term Loans) and subject to clauses (b) and (c) above,~~ the ~~amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~Revolving Credit Lenders hereunder. (cd) Each notice from ~~Parent~~ the Borrowers pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental ~~Term Loans or~~ Revolving ~~Commitment Increases~~Commitments. ~~Incremental Term Loans may be made~~Any additional bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to extend Incremental Revolving Commitments shall be reasonably satisfactory to the Borrowers and the Administrative Agent, the L/C Issuer and Swing Line Lender (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable Borrower~~Borrowers, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, ~~if any,~~ the Administrative Agent and each L/C Issuer and Swing Line Lender. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment and the ~~Administrative Agent~~L/C Issuer and Swing Line Lender. ~~The~~ No Lender shall be obligated to provide any Incremental Revolving Commitments, unless it so agrees. Commitments in respect of any Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14~~, including without limitation~~ . Any Incremental Facility Amendment shall be pursuant to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and documentation to ~~establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable.~~ be mutually agreed. (e) The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) the representations and warranties of each Loan Party set forth in Section 4.02 being true and correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such ~~further conditions as Parent~~ date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date and (ii) no Event of Default shall exist, or would result from such issuance of the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ Incremental Revolving Commitment; provided in the case of Incremental Revolving Commitments the proceeds of which will be used to finance a Limited Condition Transaction, (1) governed by the laws of the United States, (X) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender~~ Facility Closing Date shall be ~~obligated~~ the Specified Representations and (Y) Section 4.02(b) shall be limited to ~~provide any Incremental Term Loans~~ Specified Events of Default and (2) governed by laws other than the laws of the United States, only customary “certain funds” conditions for the applicable jurisdiction or ~~Revolving Commitment Increases, unless it so agrees. (d)~~ as required by the terms of the documentation governing such Limited Condition Transaction will be required to be satisfied). Upon each increase in the Revolving Credit Commitments under such Amendment No. 4 Revolving Credit Facility pursuant to this Section 2.14, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit under such Amendment No. 4 Revolving Credit Facility and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) under such Amendment No. 4 Revolving Credit Facility will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s Revolving Credit ~~Commitment and (b) if~~Commitment. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans are outstanding under ~~the applicable Facility outstanding, such~~ a Amendment No. 4 Revolving Credit ~~Loans shall on or prior to~~ Facility at the time any Incremental Revolving Commitments are established under such Amendment No. 4 Revolving Credit Facility, the Revolving Credit Lenders immediately after effectiveness of such Incremental Revolving ~~Commitment Increase be prepaid from the proceeds~~ Commitments shall purchase and assign at par such amounts of ~~additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred by any~~ outstanding under such Amendment No. 4 Revolving Credit Facility at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 3.05~~under such Amendment No. 4 Revolving Credit Facility holds its Applicable Percentage of all Revolving Credit Loans outstanding under such Amendment No. 4 Revolving Credit Facility immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) ~~The effectiveness~~ Any portion of any Incremental ~~Amendment shall~~ Revolving Commitment incurred other than under the Incremental Incurrence Test may be ~~subject to~~reclassified at any time, as the Parent Borrower may elect from time to time, as incurred under the Incremental Incurrence Test if ~~requested by~~ the ~~Administrative Agent, receipt by~~ Parent Borrower meets the ~~Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on~~ applicable ratio under the ~~Closing Date (conformed as appropriate, including to reflect any~~ Incremental ~~Term Loans provided~~ Incurrence Test at such time on a ~~“certain funds” basis), (ii) reaffirmation agreements and/or such amendments~~ Pro Forma Basis at any time subsequent to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date incurrence of such Incremental ~~Amendment, except to the extent that~~ Revolving Commitment (or would have met such ~~representations and warranties specifically refer to an earlier date~~ratio, in which ~~case they~~ case, such reclassification shall be ~~true and correct in all material respects (or, with respect~~ deemed to ~~representations and warranties modified~~ have automatically occurred if not elected by ~~a materiality or Material Adverse Effect standard, in all respects) as of such earlier date~~the Parent Borrower). ~~(g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~

Appears in 1 contract

Sources: Credit Agreement (Accendra Health Inc/Va/)

Incremental Credit Extensions. ~~(a) Parent may,~~ The Borrower may at any time or from time to time after the ~~Closing~~ Second Restatement Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ one or more additional tranches of ~~term loans~~ Tranche A Term Loans (which may take the form of an increase in the principal amount of the existing tranche of Tranche A Term Loans) (the “Incremental Tranche A Term Loans”), Tranche B Term Loans (which may take the form of an increase in the principal amount of the existing tranche of Tranche B Term Loans) (the “Incremental Tranche B Term Loans” and, together with the Incremental Tranche A Term Loans, the “Incremental Term Loans”) or revolving credit commitments (bthe “Incremental Revolving Credit Loans”) ~~one~~ or ~~more~~ increases in the aggregate amount of the Revolving Credit Commitments ~~of any Facility~~ (each such ~~increase,~~ increase a “Revolving Commitment Increase”; together with the Incremental Revolving Credit Loans, the “Incremental Revolving Facilities”) under the Facilities (each, an “Incremental Facility”)~~; provided~~, provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to ~~below~~ below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan is made or Incremental Revolving Facility becomes effective (and after giving effect thereto~~), (i~~) no Default or Event of Default shall exist and (ii) ~~Parent~~ the Borrower shall be in compliance with the covenant set forth in Section 7.11 determined on a Pro Forma ~~Compliance~~ Basis as of the date of such Incremental Facility and the last day of the most recently ended Test Period. The aggregate amount of the Incremental Facilities, when taken together with the aggregate principal amount of Indebtedness incurred pursuant to Section ~~7.09 for~~ 7.03(t), shall not exceed the sum of (i) $350,000,000, (ii) all voluntary prepayments of Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary commitment reductions of Revolving Credit Commitments prior to the applicable Incremental Facility Closing Date (excluding voluntary prepayments of Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary commitment reductions of Revolving Credit Commitments to the extent funded with a contemporaneous incurrence of Indebtedness) and (iii) additional amounts (including at any time prior to the utilization of amounts under clauses (i) and (ii) above) such that, after giving pro forma effect to the applicable Incremental Facility (or any Indebtedness incurred pursuant to Section 7.03(t), as applicable), the First Lien Leverage Ratio determined on a Pro Forma Basis as of the last day of the most recently ended Test Period shall not exceed 3.75:1.00 (it being understood and agreed that, solely for ~~which financial statements have been delivered~~ purposes of determining the First Lien Leverage Ratio pursuant to this clause (iii), (x) any Indebtedness incurred or proposed to be incurred under such Incremental Facility (or any Indebtedness incurred pursuant to Section ~~6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase~~ 7.03(t), as applicable) shall be ~~in an aggregate principal amount that is not less than $50 million~~ deemed to be first-lien Indebtedness and (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the y) any Incremental ~~Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended~~ Revolving Credit Commitments ~~pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase~~ shall be on deemed to be fully drawn) (the ~~same terms~~ sum of clauses (i), (ii) and ~~pursuant to the same documentation applicable to the Revolving Credit Facility~~ (~~including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided~~iii) at any time, the ~~Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase~~“Available Incremental Amount”). The Incremental ~~Term Loans~~ Facilities (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) (x) in the case of a Revolving Commitment Increase, shall mature on the Maturity Date of the Revolving Credit Facility and (y) shall not mature earlier than the Maturity Date ~~with respect to~~ of (1) the Tranche A Term Facility, in the case of Incremental Tranche A Term Loans, and (2) the Tranche B Term Facility, in the case of Incremental Tranche B Term Loans, (c) shall ~~not~~ have a ~~shorter~~ Weighted Average Life to Maturity no shorter than the ~~remaining~~ Weighted Average Life to Maturity of (1) the Tranche A Term Facility, in the case of Incremental Tranche A Term Loans, and (2) the Tranche B Term Facility, in the case of Incremental Tranche B Term Loans, (d) except as set forth above, shall be ~~entitled to share~~ treated substantially the same as (and in ~~mandatory and voluntary prepayments on a ratable~~ any event, no more favorably than) (~~or less than ratable~~1) the Revolving Credit Facility, ~~but~~ in ~~no event greater than ratable~~the case of Incremental Revolving Credit Loans, (2) ~~basis with~~ the Tranche A Term Loans, in the case of Incremental Tranche A Term Loans and (3) the Tranche B Term Loans, in the case of Incremental Tranche B Term Loans (in each case, other than with respect to pricing, amortization and maturity), and (e) ~~shall bear~~ will accrue interest at rates ~~and be entitled to upfront fees as shall be~~ determined by ~~Parent~~ the Borrower and the lenders providing such Incremental Facility, which rates may be higher or lower than the rates applicable ~~new Lenders~~to (1) the Revolving Credit Facility, in the case of Incremental Revolving Credit Loans, (2) the Tranche A Term Loans, in the case of Incremental Tranche A Term Loans and (3) the Tranche B Term Loans, in the case of Incremental Tranche B Term Loans; ~~provided, however,~~ provided that ~~if the All-In Yield for~~ with respect to any Incremental Term Loans ~~that are~~ incurred ~~under this Section 2.14 on a date that is prior to~~ after the ~~twelve (12) month anniversary of the Amendment No. 2~~ Second Restatement Effective Date, if the sum of the Applicable Rate (which, for such purposes only, shall ~~exceed the All~~be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans (with such upfront or similar fees or original issue discount being equated to interest based on an assumed four-~~In Yield with respect~~ year life to maturity) but excluding customary arrangement or commitment fees paid to the arrangers thereof) and any “LIBOR floor” (such sum, the “Incremental Rate”) applicable to such Indebtedness relating to the Incremental Term Loans (1) exceeds, in the case of Incremental Tranche A Term Loans, the sum of the Applicable Rate and Adjusted LIBOR (such sum, the “Tranche A Rate”) relating to the Tranche A Term Loans by more than ~~50 basis points~~0.50%, ~~then~~ the ~~interest rate margins applicable~~ Applicable Rate relating to the Tranche A Term Loans shall be ~~increased so~~ adjusted such that ~~such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to~~ the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant Tranche A Rate is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable equal to the Incremental Rate relating to the applicable Incremental Tranche A Term Loans minus 0.50%, and (2) exceeds, in the case of Incremental Tranche B Term Loans, the sum of the Applicable Rate and Adjusted LIBOR (such sum, the “Tranche B Rate”) relating to the Tranche B Term Loans by more than 0.50%, the Applicable Rate relating to the Tranche B Term Loans shall be ~~determined by Parent and~~ adjusted such that the ~~lenders thereof. (c)~~ Tranche B Rate is equal to the Incremental Rate relating to the applicable Incremental Tranche B Term Loans minus 0.50%. Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Facility. Incremental Term Loans and Incremental Revolving Facilities may be ~~made, and Revolving Commitment Increases may be provided,~~ provided by any existing Lender (provided that no existing Lender shall have (x) an obligation to provide any portion of any Incremental Facility or (y) the right to provide any portion of any Incremental Facility (provided that, for the avoidance of doubt, the Borrower may approach any existing Lender to provide all or any portion of any Incremental Facility), in each case, on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”)~~; provided~~, provided that the Administrative ~~Agent, each Swing Line Lender and each L/C Issuer~~ Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans ~~or providing such~~ and Incremental Revolving ~~Commitment Increases~~ Facility if such consent would be required under Section ~~10.06(b~~10.07(b) for an assignment of Loans ~~or Revolving Credit Commitments, as applicable,~~ to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Incremental Revolving ~~Commitment Increases~~ Facilities shall become Commitments ~~(or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the ~~applicable~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ 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 Administrative Agent and ~~Parent~~ the Borrower, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicableSection. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such ~~further~~ Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as ~~Parent and~~ the ~~applicable Lenders and Additional Lenders~~ parties thereto shall agree. The ~~Borrowers may~~ Borrower will use the proceeds of the Incremental Term Loans and the Incremental Revolving ~~Commitment Increases~~ Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases,~~ Facilities unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Second Amendment and Restatement Agreement (Team Health Holdings Inc.)

Appears in 1 contract

Sources: Credit Agreement (Yum Brands Inc)

Incremental Credit Extensions. (a) ~~Parent~~ The Borrowers may, at any time or from time to time after the ~~Closing~~ Effective Date, by notice from the Borrower Representative to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ one or more additional tranches of term loans and/or one or more increases in the amount of any Class of Term Loans then outstanding (the commitments thereof, the “Incremental Term Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Lender making such loans, an “Incremental Term Lender”) and/or one or more additional tranches of 13452822.12 |US-DOCS\87149920.12138026742.9|| 27955694.v2 revolving loans (bthe “Additional/Replacement Revolving Commitments”) and/or one or more increases in the amount of the Revolving ~~Credit~~ Commitments of any ~~Facility~~ Class (each such increase, a “Revolving Commitment Increase”, the loans thereunder and under any Additional/Replacement Revolving Commitments, the “Incremental Revolving Loans”, and a Lender making such a commitment, an “Incremental Revolving Lender”); ~~provided~~provided that: (i) [reserved]; (ii) after giving effect to any such Additional/Replacement Revolving Commitments, ~~that upon the effectiveness of~~ any ~~Incremental Amendment referred to below~~ such Revolving Commitment Increase and ~~at the time that~~ any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary hereinLoans, the aggregate amount of ~~the Incremental Term Loans and the~~ such Additional/Replacement Revolving Commitments, Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall ~~otherwise be on terms and pursuant to documentation to be determined by Parent; provided that,~~ not exceed an amount equal to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-sum of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Emerald Holding, Inc.)

Incremental Credit Extensions. ~~(a) Parent~~ The Borrowers may, at any time or from time to time after the ~~Closing~~ Effective Date, by notice from the Borrower Representative to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ one or more additional tranches of term loans and/or one or more increases in the amount of any Class of Term Loans then outstanding (the commitments thereof, the “Incremental Term Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Lender making such loans, an “Incremental Term Lender”) and/or one or more additional tranches of revolving loans (bthe “Additional/Replacement Revolving Commitments”) and/or one or more increases in the amount of the Revolving ~~Credit~~ Commitments of any ~~Facility~~ Class (each such increase, a “Revolving Commitment Increase”, the loans thereunder and under any Additional/Replacement Revolving Commitments, the “Incremental Revolving Loans”, and a Lender making such a commitment, an “Incremental Revolving Lender”); ~~provided~~provided that: [reserved]; after giving effect to any such Additional/Replacement Revolving Commitments, ~~that upon the effectiveness of~~ any ~~Incremental Amendment referred to below~~ such Revolving Commitment Increase and ~~at the time that~~ any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary hereinLoans, the aggregate amount of ~~the Incremental Term Loans and the~~ such Additional/Replacement Revolving Commitments, Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall ~~otherwise be on terms and pursuant to documentation to be determined by Parent; provided that,~~ not exceed an amount equal to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-sum of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Emerald Holding, Inc.)

Incremental Credit Extensions. (ai) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Loan Parties may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of Term B Loans or 2022 Incremental Term Loans of any Class or add one or more additional tranches of term loans (any such Term B Loans, 2022 Incremental Term Loans or additional tranche of term loans, the “Incremental Term Loans”) ~~or (b)~~ and/or one or more increases in the ~~amount of~~ Revolving Credit Commitments under the Revolving Credit ~~Commitments of any~~ Facility (~~each such increase,~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”)~~; provided~~. Notwithstanding anything to contrary herein, ~~that upon~~ the ~~effectiveness~~ aggregate Dollar Equivalent amount of ~~any~~ all Incremental ~~Amendment referred to below~~ Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the time ~~that any such Incremental Term Loan is made (and after giving effect thereto~~of incurrence), ~~(i) no Default or Event~~ together with the aggregate principal amount of ~~Default~~ all Incremental Equivalent Debt and Indebtedness incurred in reliance on Section 7.03(r)(ii)(A), shall ~~exist and (ii) Parent~~ not exceed the Incremental Cap. Each Incremental Facility shall be in ~~Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche~~ an integral multiple of ~~Incremental Term Loans~~ $1,000,000 and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $~~50 million (provided~~10,000,000 in case of Incremental Term Loans or $5,000,000 in case of Incremental Revolving Credit Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth above. Each Incremental Facility shall have the same guarantees as, and to the extent secured, shall be secured only by (and on an equal or junior priority basis with) the Collateral securing, all of the other Loan Obligations under this Agreement (provided that, in the ~~next sentence~~case of any Incremental Facility that is funded into Escrow, such Incremental Facility may be secured by - 109 - the applicable funds and related assets held in Escrow (and the proceeds thereof) until such Incremental Facility is released from Escrow) and shall be subject to an Acceptable Intercreditor Agreement. (j) Any Incremental Term Loans (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans and/or 2022 Incremental Term Loans, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)~~. Notwithstanding anything to~~ ) amortization schedules as determined by the ~~contrary herein~~Borrower and the lenders thereunder (provided that, except in the ~~aggregate amount~~ case of Refinancing Term Loans, if (x) such Incremental Term Loans are Qualifying Term Loans incurred in reliance on clause (c) of the Incremental ~~Term Loans and~~ Cap, the ~~Revolving Commitment Increases (other than, for~~ All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the ~~avoidance of doubt, those established~~ All-In-Rate in respect of ~~Extended~~ the Term B Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Base Rate floor or Eurocurrency Rate floor) with respect to the Term B Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum, provided that, unless otherwise agreed by the Borrower in its sole discretion, any increase in All-In-Rate to any Term B Loan due to the application or imposition of a Base Rate floor or Eurocurrency Rate floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Eurocurrency Rate floor applicable to such Term B Loan and (y) such Incremental Term Loans are Additional Qualifying Term Loans incurred in reliance on clause (c) of the Incremental Cap, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the 2022 Incremental Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Base Rate floor or ~~Extended~~ Term SOFR floor) with respect to the 2022 Incremental Term Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum, provided that, unless otherwise agreed by the Borrower in its sole discretion, any increase in All-In-Rate to any 2022 Incremental Term Loan due to the application or imposition of a Base Rate floor or Term SOFR floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Term SOFR floor applicable to such 2022 Incremental Term Loans (this proviso to this clause (b)(ii), the “MFN Provision”)), (iii) any Incremental Term Loan (other than Inside Maturity Loans) shall not have a final maturity date earlier than the Maturity Date applicable to the latest maturing Class of Term B Loans) on the date of incurrence of such Incremental Term Loans, (iv) any Incremental Term Loan (other than Inside Maturity Loans) shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the latest maturing Class of Term B Loans) and (v) shall be, taken as a whole, no more favorable to the lenders providing such Incremental Facility, in their capacity as such (as reasonably determined by the Borrower) (excluding (x) pricing, rate floors, original issue discounts or call protection, premiums and optional prepayment or redemption terms and (y) (I) covenants or other provisions applicable only to periods after the latest maturity date of the applicable Facility or (II) any more restrictive covenant, to the extent that (A) if such more restrictive covenant is added for the benefit of any Incremental Facility consisting of term loans other than Customary Term A Loans, such covenant (except to the extent only applicable after the Latest mMaturity dDate of the Term B Loans) is also added for the benefit of all of the Facilities or (B) if such more restrictive covenant is added for the benefit of any Incremental Facility consisting of a revolving facility or Customary Term A Loans, such covenant (except to the extent only applicable after the maturity date of the Revolving Credit Facility) is also added for the benefit of the Revolving Credit Facility; it being understood and agreed that in each such case of clauses (A) and (B), no consent of any Agent and/or any Lender shall be required in connection with adding such covenant). (k) Any Revolving Credit Commitment Increase shall (i) have the same maturity date as the Revolving Credit Commitments ~~pursuant~~ under such Revolving Credit Facility that is being increased, (ii) require no scheduled amortization or mandatory commitment reduction prior to ~~Section 2.16~~the final maturity of the Revolving Credit Commitments and (iii) ~~shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall~~ be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Commitments under such Revolving Credit Facility that is being increased (it being understood that, if required to consummate a Revolving Credit Commitment Increase, the pricing, interest margin, rate floors and commitment fees shall be increased so long as such increases - 110 - apply to the entire Revolving Credit Facility (~~including the maturity date in respect thereof but excluding up-front commitment~~ provided additional upfront or similar ~~fees~~fees may be payable to the Lenders participating in the Revolving Credit Commitment Increase without any requirement to pay such amounts to Lenders holding existing Revolving Credit Commitments)~~; provided~~). Any Additional Revolving Credit Commitments (i) shall have interest rate margins and, subject to clause (ii), have amortization schedules as determined by the Borrower and the lenders thereunder but shall not require scheduled amortization or mandatory commitment reductions prior to the Maturity Date of the Revolving Credit Facility, (ii) other than Inside Maturity Loans, mature no earlier than, and will require no mandatory commitment reduction prior to, the ~~Applicable Rate with respect~~ Maturity Date applicable to the Revolving Credit ~~Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans~~ Commitments, (aiii) ~~shall rank pari passu or junior in right of payment and of security with the~~ which are Refinancing Revolving Credit ~~Loans and the Term Loans, (b)~~ Commitments shall not ~~mature~~ have a final maturity date earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the ~~Term Loans~~ Revolving Credit Commitments being refinanced thereby and (iv) shall ~~be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on~~ have the same terms ~~and pursuant to documentation to be determined by Parent; provided that, to~~ as the ~~extent~~ Revolving Credit Commitments or such terms ~~and documentation~~ as are ~~not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be~~ reasonably satisfactory to the Administrative ~~Agent (~~Agent, it being understood ~~to the extent~~ that ~~any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase,~~ no consent shall be required from the Administrative Agent ~~or any Lender~~ for terms and conditions that are more restrictive than the existing Revolving Credit Commitments to the extent that they apply to periods after the Maturity Date applicable to the Revolving Credit Commitments or are otherwise added for the benefit of the Revolving Credit Lenders hereunder (which shall not require the consent of any Revolving Credit Lender or any Agent); provided that to the extent any covenant that is more restrictive than the Financial Covenants is added for the benefit of any Additional Revolving Commitments, such ~~financial maintenance~~ covenant (except to the extent only applicable after the maturity date of each Revolving Credit Facility) is also added for the benefit of each Revolving Credit Facility; it being understood and agreed that in each such case, no consent of any ~~corresponding existing Term Loans~~Agent and/or any Lender shall be required in connection with adding such covenant); provided that notwithstanding anything to the contrary in this Section 2.14(c), (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Additional Revolving Credit Commitments (and related outstandings), (B) repayments required upon the maturity date of the applicable Revolving Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Revolving Credit Loans with respect to Additional Revolving Credit Commitments shall be made on a no less than pro rata basis (with respect to borrowings) and ~~subject~~ a no greater than pro rata basis (with respect to ~~clauses~~ repayments) with all other Revolving Credit Commitments, (b2) all Letters of Credit may be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments, (3) the permanent repayment of commitments with respect to, and ~~(c) above~~termination of, Additional Revolving Credit Commitments prior to the ~~amortization schedule (if any)~~ Maturity Date applicable to the ~~Incremental Term Loans~~ Revolving Credit Commitments at the time of incurrence of such Additional Revolving Credit Commitments shall be ~~determined~~ made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrower shall be permitted to permanently repay and terminate commitments of any Class of Revolving Credit Commitments on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class and (4) assignments and participations of Additional Revolving Credit Commitments (and Revolving Credit Loans made thereunder) shall be governed by ~~Parent~~ the same or equivalent assignment and participation provisions applicable to the ~~lenders thereof~~Revolving Credit Commitments and Revolving Credit Loans. (cl) [Reserved]. (m) Each notice from ~~Parent~~ the applicable Loan Party pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Credit Commitments shall be ~~made~~reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable Borrower, each Lender agreeing to provide~~ Borrower and such ~~Commitment, if any, each~~ Additional Lender, ~~if any~~and, ~~and~~ in the ~~Administrative Agent~~case of any Incremental Revolving Credit Commitments, each L/C Issuer. ~~The~~ For the avoidance of doubt, no L/C Issuer is required to act as such for any Additional Revolving Credit Commitments unless they so consent. No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in Additional Lenders with respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such ~~further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the~~ Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement~~Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments, unless it so agrees. . Commitments in respect of any Incremental Term Loans or Incremental Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Additional Lenders, be subject to the satisfaction on the date thereof (deach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (ii) if the proceeds of such Incremental Facility are to be used, in whole or in part, to (x) finance a Permitted Acquisition or other Investment, (1) such incurrence shall be subject to the LCT Provisions and (2) no Specified Event of Default shall exist on the Incremental Facility Closing Date or (y) for any other purpose, no Event of Default shall exist on the Incremental Facility Closing Date). The proceeds of any Incremental Term Loans will be used for general corporate purposes and any other use not prohibited hereunder. Upon each increase in the Revolving Credit Commitments under any Revolving Credit Facility pursuant to this Section ~~2.14~~2.14 that is in the form of a Revolving Credit Commitment Increase, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment~~ Increase Lender”)) in respect of such Revolving Credit Commitment Increase, and each such Incremental Revolving ~~Commitment~~ Increase Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding ~~(i)~~ participations hereunder in Letters of Credit ~~and (ii) participations hereunder in Swing Line Loans~~ held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment~~ Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s Revolving Credit Commitment ~~and (b) if~~after giving effect to such Revolving Credit Commitment Increase. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans are outstanding under a Revolving Credit Facility at the ~~applicable Facility outstanding,~~ time any Revolving Credit Commitment Increase is implemented under such Revolving Credit ~~Loans shall on or prior to~~ Facility, the Revolving Credit Lenders immediately after effectiveness of such Revolving Credit Commitment Increase ~~be prepaid from the proceeds~~ shall purchase and assign at par such amounts of ~~additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred by any~~ outstanding under such Revolving Credit Facility at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 3.05~~holds its Applicable Percentage of all Revolving Credit Loans outstanding under such Revolving Credit Facility immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to ~~the immediately preceding sentence. (e) Notwithstanding anything to the contrary in~~ this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis2.14. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Travel & Leisure Co.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to (ax) increase the amount of Term Loans (other than Term B-2 Term Loans) or add one or more additional tranches of term loans (any such Term Loans or additional tranche of term loans, the “Incremental Term Loans”) or (by) add one or more ~~increases in~~ additional tranches of revolving credit commitments (any such revolving credit commitments, the “Incremental Revolving Commitments” and, any loans made thereunder, the “Incremental Revolving Loans”, together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Loans) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) the Unrestricted Incremental First Lien Amount plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements effected after the ClosingAmendment No. 4 Effective Date (including pursuant to debt buy-backs made by the Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof) of Term Loans, Incremental Revolving ~~Credit Commitments of any Facility~~ Loans and Permitted Alternative Incremental Facilities Debt, in each case solely to the extent (x) such Indebtedness is secured on a pari passu basis with the Initial2024 Term Loans and (y) accompanied by permanent commitment reductions if such Indebtedness is revolving in nature, but in each ~~such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that~~ excluding any such ~~Incremental Term Loan is~~ prepayments, repurchases, redemptions or other retirements made with the proceeds of substantially concurrent borrowings of new Loans hereunder or with the proceeds of substantially concurrent incurrences of other long term Indebtedness (~~and after giving effect thereto~~other than borrowings under the ABL Facility or other revolving indebtedness)) (this clause (ii), the “Voluntary Prepayment Amount”) plus (iiii) ~~no Default or Event of Default shall exist~~ unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as (iiA) ~~Parent shall be in~~ if such Indebtedness is secured by any Liens on the Collateral (other than Liens that are junior to the Liens securing the Obligations), the Consolidated First Lien Net Leverage Ratio (calculated on a Pro Forma ~~Compliance with Section 7.09 for~~ Basis but excluding the cash proceeds therefrom) as of the last day of the most recently ended Test Period is not greater than 3.753.50:1.00, (B) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Liens securing the Obligations, the Consolidated Secured Net Leverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom) as of the last day of the most recently ended Test Period is not greater than 3.754.50:1.00 and (C) if such Indebtedness is unsecured, at the Borrower’s option, the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom) as of the last day of the most recently ended Test Period is not greater than 3.754.50:1.00 (this clause (iii), the “Incremental Incurrence Test”); provided that (i) for ~~which financial statements have been delivered~~ purposes of calculating any ratio under the Incremental Incurrence Test, the full committed amount of any Incremental Facility or Permitted Alternative Incremental Facilities Debt, in each case then being incurred, shall be treated as being outstanding, (ii) if Indebtedness incurred in reliance on the Incremental Incurrence Test is incurred concurrently with Indebtedness incurred in reliance on the Unrestricted Incremental First Lien Amount and/or the Voluntary Prepayment Amount, the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable, may exceed 3.753.50:1.00, 3.754.50:1.00 and 3.754.50:1.00, respectively, solely to the extent of the principal amount of Indebtedness being incurred #98202018v27 concurrently in reliance on the Unrestricted Incremental First Lien Amount and/or the Voluntary Prepayment Amount and (iii) Incremental Facilities may be incurred pursuant to ~~Section 6.01~~the Incremental Incurrence Test prior to utilization of the Unrestricted Incremental First Lien Amount and the Voluntary Prepayment Amount. Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1,000,000 and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $~~50 million (provided,~~ 5,000,000,; provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth ~~in the next sentence)~~above. ~~Notwithstanding anything to the contrary herein, the aggregate amount of the~~ Each Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment to the Initial2024 Term Loans. To the extent such Incremental Facility is guaranteed or secured, each such Incremental Facility shall not be incurred or guaranteed by any Person that is not a Loan Party and shall not be secured by any assets that do not constitute Collateral and shall be subject to an Applicable Intercreditor Agreement. The Borrower shall be the borrower under any Incremental Facility. (b) Any Incremental Term Loans (other than Refinancing Loans) (i) for purposes of ~~security with~~ prepayments, shall be treated substantially the ~~Revolving Credit Loans~~ same as (and in any event no more favorably than) the Initial2024 Term Loans, (bii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that, solely in the case of any broadly syndicated Incremental Term Loans incurred on or prior to the date that is 12 months after the Amendment No. 4 Effective Date, if the Effective Yield of any such Incremental Term Loans that are secured by any Liens on the Collateral on a pari passu basis with the Liens securing the Obligations exceeds the Effective Yield of the Initial2024 Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to the Initial2024 Term Loans shall be adjusted such that the Effective Yield of the Initial2024 Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum (the foregoing, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial2024 Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the Initial2024 Term Loans shall be effected solely through an increase in the interest rate floor applicable to the Initial2024 Term Loans), (iii) any Incremental Term Loan shall not mature earlier than 91 days prior to the Latest Maturity Date applicable to the Initial2024 Term Loans (or earlier than the Latest Maturity Date applicable to the Term Loans in the case of any such Incremental Term Loan that is secured with a Lien on the Collateral ranking pari passu with the Liens securing the Obligations), (iv) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial2024 Term Loans (without giving effect to any amortization or prepayments on the outstanding Initial2024 Term Loans) and (v) except to the extent otherwise permitted by this Section 2.14, shall have the same terms and conditions as the Initial2024 Term Loans (other than any terms and conditions that (x) apply only to periods after the then Latest Maturity Date with respect to the Term Loans or (y) are otherwise added for the benefit of the Term Lenders hereunder); provided that the foregoing requirements in clauses (b)(iii) and (iv) shall not apply to the extent such Incremental Term Loans constitute customary bridge loans, so long as the long-term Indebtedness into which such customary bridge facility is to be converted or exchanged satisfies the requirements of clauses (b)(iii) and (iv). (c) Any Incremental Revolving Commitments (i) shall not have a final maturity date earlier than the latest Applicable TerminateTermination Date (as defined in the ABL Credit Agreement) applicable to the ABL Facility, (ii) shall not be subject to (x) any mandatory prepayments (other than mandatory prepayments that are customary for revolving credit facilities with respect to loans thereunder exceeding the commitments) or (y) any mandatory commitment reductions or amortization and (iii) except to the extent otherwise permitted by this Section 2.14, shall have the same terms and conditions as the Initial2024 Term Loans (other than any terms and conditions that (x) apply only to periods after the then Latest Maturity Date with respect to the Term Loans, (cy) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of ~~any Incremental~~ the #98202018v27 Term ~~Loan or Revolving Commitment Increase~~Lenders hereunder, 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) and subject to clauses (b) and (cz) ~~above,~~ are otherwise added or modified to reflect the ~~amortization schedule (if any) applicable to the~~ revolving credit nature of such Incremental ~~Term Loans shall be determined by Parent~~ Revolving Commitments and ~~the lenders thereof~~are customary for revolving credit facilities). (cd) Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental ~~Term Loans or Revolving Commitment Increases~~Facility. ~~Incremental Term Loans may be made~~Any additional bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to extend Incremental Facilities shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, ~~if any, and~~ the Administrative Agent. ~~The~~ No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Term Commitments in respect of any Incremental Term Loans shall become Term Commitments under this Agreement. An Incremental Facility Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14~~, including without limitation to incorporate the applicable lenders in respect of~~ . Any Incremental ~~Term Loans as “Lenders”~~Facility Amendment, and the ~~Incremental Term Loans as “Loans” and/or “Term Loans”~~use of proceeds thereunder, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be ~~subject~~ pursuant to ~~such further conditions as Parent and~~ documentation to be mutually agreed between the applicable Lenders and ~~Additional Lenders shall agree. The Borrowers may use~~ the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceBorrower. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Facility Amendment ~~shall be subject to~~shall, ~~if requested by the Administrative Agent, receipt~~ unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties ~~contained~~ of each Loan Party set forth in ~~Article V~~ Section 4.02 being true and ~~the other Loan Documents~~ correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date) and (orii) subject to Section 1.09, ~~with respect~~ no Default or Event of Default shall exist, or would result from such issuance of the proceeds of such Incremental Facility; provided in the case of Incremental Facilities the proceeds of which will be used to finance a Limited Condition Transaction, (1) the only representations and warranties ~~modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except~~ that will be required to ~~the extent that such representations and warranties specifically refer to an earlier date, in which case they shall~~ be true and correct in all material respects ~~(or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects)~~ as of the applicable Incremental Facility Closing Date shall be the Specified Representations (conformed as necessary for such ~~earlier date~~Limited Condition Transaction) and (2) no Specified Events of Default shall be continuing at the time such Limited Condition Transaction is consummated. The proceeds of any Incremental Term Loans will be used only for general corporate purposes (including (without limitation) Permitted Acquisitions). ~~(g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~

Appears in 1 contract

Sources: Term Loan Agreement (United Natural Foods Inc)

Appears in 1 contract

Sources: Credit Agreement (Restaurant Brands International Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, by the Borrower may, with notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), ~~request~~ add (a1) one or more ~~additional~~ tranches of “term a” loans or “term b” loans or increase the amount of any such loans outstanding at such time (any such loans, the “Incremental Term Loans”) or and/or (b2) one or more increases in the Revolving Credit Commitments of any Class (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed (i) the Unrestricted Incremental Amount, plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans or any other Indebtedness secured on a pari passu basis with the Revolving Credit Facility (and, in the case of any revolving facility, to the extent accompanied by a permanent reduction of the relevant commitment) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Effective Date, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long-term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction) (~~each such increase~~this clause (ii), a the “~~Revolving Commitment Increase~~Voluntary Prepayment Amount”~~); provided~~) plus (iii) unlimited additional Incremental Facilities and Incremental Equivalent Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving Pro Forma Effect thereto and after giving effect ~~thereto~~to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (assuming such Incremental Facilities are fully drawn but excluding the cash proceeds of any such Incremental Facilities or Incremental Equivalent Debt, as the case may be), ~~(i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09~~ the First Lien Net Leverage Ratio for the most recently ended Test Period ~~for which financial statements have been delivered~~ does not exceed 3.00:1.00, it being understood and agreed that Incremental Facilities may be incurred pursuant to ~~Section 6.01~~this clause (iii) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Commitments and/or any Incremental Equivalent Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the “Incremental Incurrence Test”), and if there is availability under this Incremental Incurrence Test at the time of the incurrence or establishment of such Incremental Facilities, then the Borrower will be deemed to have elected to use such availability under the Incremental Incurrence Test first. Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1,000,000 and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $~~50 million (provided~~5,000,000 in case of Incremental Term Loans or $1,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth ~~in the next sentence)~~above. ~~Notwithstanding anything to the contrary herein, the aggregate amount of the~~ Each Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (ai) shall rank pari passu ~~or junior~~ in right of payment and of security with the ~~Revolving Credit Loans and the~~ existing Term Loans, (ii) shall be guaranteed solely by the Guarantors that guarantee the other Obligations hereunder and (iii) will be secured solely by a Lien on the Collateral securing all of the other Obligations hereunder; provided that in the case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the applicable funds and related assets held in Escrow (and the proceeds thereof) until the time of the release from Escrow of such funds. (b) Any Incremental Term Loans (other than Refinancing Term Loans) (i) shall have interest rate margins, fees, tenor and an amortization schedule (subject to clauses (ii) and (iv) below), optional prepayment or redemption terms and other terms as determined by the Borrower and the lenders thereunder, (ii) any Incremental Term Loan shall not ~~mature~~ have a final maturity date earlier than the Maturity Date applicable to any Incremental Term Loans or the Revolving Credit Facility (but may have a springing maturity date consistent with ~~respect to~~ the ~~Term Loans~~Revolving Credit Facility), (ciii) [reserved], (iv) any Incremental Term Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of ~~the~~ any then-existing Term Loans or Incremental Term Loans, (dv) [reserved] and (vi) except to the extent otherwise permitted by this Section 2.14, shall ~~be entitled to share in mandatory~~ have substantially equivalent terms and ~~voluntary prepayments~~ conditions as any then-existing Incremental Term Loans or, if not on ~~a ratable (or less than ratable, but in no event greater than ratable) basis with the~~ substantially equivalent terms and conditions as any then-existing Incremental Term Loans, ~~and~~ on such terms as are either (ex) ~~shall bear interest at rates and be entitled~~ not materially more restrictive to ~~upfront fees~~ the Borrower (as ~~shall be~~ determined by ~~Parent and~~ the ~~applicable new Lenders; provided~~Borrower in good faith), ~~however~~when taken as a whole, ~~that if~~ than the ~~All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary~~ terms of the ~~Amendment No. 2 Effective Date, shall exceed the All~~existing Revolving Credit Loans or any then-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The existing Incremental ~~Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the~~ Term Loans (except for covenants or other provisions applicable only to periods after the ~~extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to~~ final stated maturity of the ~~Administrative Agent (it being understood to~~ Revolving Credit Loans that are outstanding on the ~~extent that any financial maintenance covenant is~~ effective date of the applicable Incremental Term Loans or which are added for the benefit of ~~any Incremental Term Loan~~ the Lenders) or ~~Revolving Commitment Increase~~(y) reasonably acceptable to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent with respect to terms and conditions that are more restrictive than the Revolving Credit Facility or any ~~Lender to the extent~~ then-existing Incremental Term Loans that ~~such financial maintenance covenant is also~~ are added for the benefit of ~~any corresponding existing Term Loans) and subject to clauses (b) and (c) above,~~ the ~~amortization schedule (if any) applicable~~ Lenders or to the extent that they apply to periods after the then Latest Maturity Date with respect to the Loans then outstanding; provided, that in the case of any Incremental Term ~~Loans~~ Loan where no Incremental Term Loan otherwise then exists, this Agreement shall be ~~determined by Parent~~ amended to include customary provisions for the addition of such Incremental Term Loan, including but not limited to mandatory prepayment, call protection, discounted voluntary prepayment and permitted debt exchange provisions; provided, that upon establishment of any Incremental Facility, Incremental Equivalent Debt or any Ratio Debt that is in the ~~lenders thereof~~form of term loans that are secured on a pari passu basis with the Revolving Credit Facility, this Agreement may be amended to include customary “most favored nation” pricing protections. (c) Any Incremental Revolving Commitments(i) for purposes of prepayments, other than Refinancing Revolving Commitments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall not have a final maturity date earlier than the Maturity Date applicable to the then-existing Revolving Credit Commitments (but may have a springing maturity date consistent with the Revolving Credit Facility), (iii) shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-existing Revolving Credit Commitments or Incremental Revolving Commitments and (iv) except to the extent otherwise permitted by this Section 2.14, shall be on the exact same terms and conditions as the Revolving Credit Commitments or such terms as are either (x) not materially more restrictive to the Borrower (as determined by the Borrower in good faith), when taken as a whole, than the terms of the existing Revolving Credit Loans (except for covenants or other provisions applicable only to periods after the final stated maturity of the Revolving Credit Loans that are outstanding on the effective date of the applicable Incremental Revolving Commitments or which are added for the benefit of the Lenders) or (y) reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the Revolving Credit Commitments to the extent that they apply to periods after the then Latest Maturity Date with respect to the Revolving Credit Facility or are otherwise added for the benefit of the Lenders hereunder. (d) Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the ~~requested~~ amount and ~~proposed~~ terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Commitments shall be ~~made~~reasonably satisfactory to the Borrower (any such bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment~~and, ~~if any~~in the case of any Incremental Revolving Commitments, each ~~Additional Lender~~L/C Issuer (solely to the extent the L/C Issuer’s consent would be required under Section 10.07(b) for an assignment of Revolving Credit Commitments) (such consent not to be unreasonably withheld, ~~if any~~conditioned or delayed), and notified to the Administrative ~~Agent~~Agent (except as otherwise set forth below). ~~The~~ No Incremental Facility Amendment ~~shall, without~~ shall require the consent of ~~the Agents or the Lenders, effect such amendments to this Agreement~~ any Person other than Borrower and the ~~other Loan Documents as may be necessary or appropriate~~Additional Lenders with respect to such Incremental Facility Amendment and, in the ~~reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect~~ case of Incremental ~~Term Loans as “Lenders”~~Revolving Commitments, ~~and~~ the ~~Incremental Term Loans as “Loans” and/or “Term Loans”~~L/C Issuer (solely to the extent the L/C Issuer’s consent would be required under Section 10.07(b) for an assignment of Revolving Credit Commitments) (such consent not to be unreasonably withheld, ~~for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class~~ conditioned or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreementdelayed). No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.14; provided, consent of the Administrative Agent to any Incremental Amendment shall be required (i) in the case of any Incremental Revolving Commitments or (ii) to the extent the terms of an Incremental Amendment would directly and adversely amend or modify the rights or duties, or otherwise materially increase the administrative responsibilities, of the Administrative Agent beyond those of the type already required to perform under the Loan Documents (such consent not to be unreasonably withheld, conditioned or delayed). Any Incremental Facility Amendment shall be pursuant to documentation to be mutually agreed among the Borrower and the Lenders providing such Incremental Facility. (de) The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) the representations and warranties of each Loan Party set forth in Section 4.02 being true and correct in all material respect (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) as of the date of such Credit Extension (except to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) as of such earlier date) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date), (ii) no Event of Default shall exist, or would result from such issuance of the Incremental Facility; provided in the case of Incremental Facilities the proceeds of which will be used to finance a Limited Condition Transaction, (1) governed by the laws of the United States, (X) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (Y) no Specified Event of Default shall have occurred and be continuing or immediately occur as a result thereof after giving effect to such Limited Condition Transaction and the funding of such Incremental Facility and (2) governed by laws other than the laws of the United States, only customary “certain funds” conditions for the applicable jurisdiction or as required by the terms of the documentation governing such Limited Condition Transaction will be required to be satisfied. The proceeds of any Incremental Term Loans will be used for general corporate purposes (including (without limitation) Permitted Acquisitions) and for any other purpose not prohibited hereunder. Upon each increase in the Revolving Credit Commitments under such Revolving Credit Facility pursuant to this Section 2.14, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding ~~(i)~~ participations hereunder in Letters of Credit ~~and (ii) participations hereunder in Swing Line Loans~~ under such Revolving Credit Facility held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) under such Revolving Credit Facility will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s Revolving Credit ~~Commitment and (b) if~~Commitment. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans are outstanding under a Revolving Credit Facility at the ~~applicable Facility outstanding,~~ time any Incremental Revolving Commitments are established under such Revolving Credit ~~Loans shall on or prior to~~ Facility, the Revolving Credit Lenders immediately after effectiveness of such Incremental Revolving ~~Commitment Increase be prepaid from the proceeds~~ Commitments shall purchase and assign at par such amounts of ~~additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred by any~~ outstanding under such Revolving Credit Facility at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 3.05~~under such Revolving Credit Facility holds its Applicable Percentage of all Revolving Credit Loans outstanding under such Revolving Credit Facility immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (SITIME Corp)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver a copy~~ make available to each of the Lenders), request ~~(a) one or more additional tranches of term loans (the “Incremental Term Loans”) or (b)~~ to effect one or more increases in the aggregate amount of the Revolving ~~Credit~~ Commitments ~~of any Facility~~ (each such increase, a “Revolving Commitment Increase”)) from Incremental Revolving Lenders; ~~provided,~~ provided that at the time of each such request and upon the effectiveness of ~~any~~ each Incremental ~~Amendment referred to below and at~~ Revolving Facility Amendment, (A) the ~~time that any such Incremental Term Loan is made~~ conditions set forth in Section 4.02 shall be satisfied, (B) the Borrower shall be in compliance on a Pro Forma Basis (before and after giving effect ~~thereto),~~ to any such Revolving Commitment Increase and NAI-1532775236v11532775236v9 84 Blue Bird Body Company Credit Agreement assuming that such Revolving Commitment Increase is fully drawn) with the Financial Performance Covenant (i) ~~no Default or Event~~ in the case of ~~Default shall exist~~ Section 6.10(a) and (~~ii) Parent shall be in~~ b), on a Pro Forma ~~Compliance with Section 7.09 for~~ Basis as of the last day of the most recently ended Test Period (with any proceeds of any Incremental Revolving Increase and anyor Cure Amounts to be excluded for ~~which financial statements~~ purposes of the cash component of the Total Net Leverage Ratio), (ii) in the case of Section 6.10(c), on the applicable date most recently tested (with any proceeds of any Incremental Revolving Increase or Cure Amounts to be excluded for purposes of the calculation of such Liquidity) and (iii) in the case of Section 6.10(d), for the most recently ended applicable three-month period, (C) the Borrower shall have ~~been~~ delivered ~~pursuant~~ a certificate of a Financial Officer to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the ~~limit~~ effect set forth in ~~the next sentence). Notwithstanding anything to the contrary herein~~clauses (A) and (B) above, ~~the aggregate amount of the Incremental Term Loans~~ together with reasonably detailed calculations demonstrating compliance with clause (B) above and ~~the Revolving Commitment Increases~~ (~~other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16~~D) ~~shall not exceed the Maximum Incremental Facilities Amount. (b) Any~~ such Revolving Commitment Increase shall be on the same terms ~~and~~ (other than any upfront fees) governing the Revolving Commitments pursuant to this Agreement. Notwithstanding anything to contrary herein, (A) the ~~same documentation applicable to~~ sum of (i) the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing aggregate principal amount of the Revolving Commitment Increases and (ii) the aggregate principal amount of all Term Commitment Increases shall not exceed the Incremental Cap and (B) no more than four such Revolving Commitment Increases and Term Commitment Increases, taken together, may be made during the term of this Agreement. Each Revolving Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $5,000,000 in excess thereof. (b) At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make such notice available to each of the Lenders), request to effect one or more additional tranches of terms loans hereunder or increases in the aggregate amount of the Term Commitments which shall take the form of an additional tranche of term loans hereunder (each such increase, a “Term Commitment Increase~~. The~~ ”, and the term loans made thereunder, “Incremental Term ~~Loans (a~~Loans”) ~~shall rank pari passu~~ from one or ~~junior in right~~ more Incremental Term Lenders; provided that at the time of ~~payment~~ each such request and upon the effectiveness of ~~security with the Revolving Credit Loans~~ each Incremental Term Facility Amendment and the incurrence of any such Incremental Term Loans, (A) the conditions set forth in Section 4.02 shall be satisfied, (B) the Borrower shall be in compliance on a Pro Forma Basis (before and after giving effect to any Incremental Term Loans made pursuant to such Term Commitment Increase) with the Financial Performance Covenant (i) in the case of Section 6.10(a) and (b), on a Pro Forma Basis as of the last day of the most recently ended Test Period (with any proceeds of any Incremental Term Loans or Cure Amounts to be excluded for purposes of the cash component of the Total Net Leverage Ratio), (ii) in the case of Section 6.10(c), on the applicable date most recently tested (with any proceeds of any Incremental Term Loans or Cure Amounts to be excluded for purposes of the calculation of such Liquidity) and (iii) in the case of Section 6.10(d), for the most recently ended applicable three-month period, (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above, (D) the maturity date of any term loans incurred pursuant to such Term Commitment Increase shall not ~~mature~~ be earlier than the Latest Maturity Date ~~with respect to~~ then in effect and the ~~Term Loans, (c) shall not have a shorter~~ Weighted Average Life to Maturity of any term loans incurred pursuant to such Term Commitment Increase shall be no shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Term Loans, (dE) ~~shall be entitled~~ the interest rate margins and, subject to ~~share in mandatory and voluntary prepayments on a ratable~~ clause (~~or less than ratable~~D), ~~but in no event greater than ratable) basis with~~ the amortization schedule for any term loans incurred pursuant to such Term ~~Loans, and (e) shall bear interest at rates and be entitled to upfront fees as~~ Commitment Increase shall be determined by ~~Parent~~ the Borrower and the Incremental Term Lenders with the applicable ~~new Lenders~~Term Commitment Increases; ~~provided, however,~~ provided that if in the event that the All-In Yield ~~for Incremental~~ of any Term ~~Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed~~ Commitment Increase effected exceeds the All-In Yield ~~with respect to~~ of the existing Term Loans by more than 50 basis points, then the ~~interest rate margins applicable to~~ Applicable Rate for the existing Term Loans shall be increased to the extent necessary so that the All-In Yield of the Term Loans is equal to the All-In Yield of such ~~excess shall be only~~ term loans incurred pursuant to such Term Commitment Increase minus 50 basis points~~. The~~ ; provided, further, that to the extent the All-In Yield with respect to such Term Commitment Increase is greater than such All-In Yield with respect to the existing Term Loans solely as a result of a higher interest rate floor, then the increase to the Applicable Rate shall be effected solely by increasing the NAI-1532775236v11532775236v9 85 Blue Bird Body Company Credit Agreement interest rate floor on the existing Term Loans, and (F) any Incremental Term ~~Loans~~ Facility Amendment shall ~~otherwise~~ be on the terms and pursuant to documentation to be determined by ~~Parent~~the Borrower and the Incremental Term Lenders with the applicable Term Commitment Increases; provided ~~that,~~ that to the extent such terms and documentation are not consistent with ~~the Term Loans~~ this Agreement (except to the extent permitted by clauses (aD) ~~through~~ or (eE) above), they shall be reasonably satisfactory to the Administrative ~~Agent~~ Agent. Notwithstanding anything to contrary herein, (~~it being understood to~~ A) the ~~extent that any financial maintenance covenant is added for~~ sum of (i) the ~~benefit~~ aggregate principal amount of ~~any Incremental~~ the Term ~~Loan or~~ Commitment Increases and (ii) the aggregate principal amount of all Revolving Commitment ~~Increase~~Increases shall not exceed the Incremental Cap and (B) no more than four such Term Commitment Increases and Revolving Commitment Increases, ~~no consent~~ taken together, may be made during the term of this Agreement. Each Term Commitment Increase shall be ~~required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit~~ in a minimum principal amount of ~~any corresponding existing Term Loans)~~ $5,000,000 and ~~subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders~~ integral multiples of $5,000,000 in excess thereof. (ci) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount ~~and proposed terms~~ of the relevant ~~Incremental Term Loans or~~ Revolving Commitment ~~Increases. Incremental~~ Increase or Term ~~Loans may be made, and Revolving~~ Commitment ~~Increases may be provided, by any existing Lender or by any other bank or other financial institution~~ Increase. (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheldii) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of ~~Incremental Term Loans and~~ any Revolving Commitment ~~Increases~~ Increase shall become Commitments (or in the case of a any Revolving Commitment Increase to be provided by an existing Revolving ~~Credit~~ Lender, an increase in such Revolving Lender’s ~~applicable~~ Revolving ~~Credit~~ Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each~~ such Incremental Revolving Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ Revolving Commitment Increases may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Facility or, unless it agrees, be obligated to provide any Revolving Commitment Increase) or by any Incremental Revolving Lender. An Incremental Revolving Facility Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicableSection. The effectiveness of any Incremental Revolving Facility Amendment shall be subject to ~~such further conditions as Parent and~~ the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ satisfaction on the ~~proceeds~~ date thereof (each, an “Incremental Revolving Facility Effective Date”) of each of the ~~Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated~~ conditions set forth in Section 4.02 (it being understood that all references to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such ~~increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans~~ Borrowing” in Section 4.02 shall ~~on or prior~~ be deemed to refer to the ~~effectiveness of such~~ Incremental Revolving ~~Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable~~ Facility ~~made hereunder (reflecting such increase in Revolving Credit Commitments)~~Effective Date) and, which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of ~~(i) customary~~ legal opinions, board ~~resolutions and~~ resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (~~conformed~~ other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). (iii) Commitments in respect of any Term Commitment Increase (the “Incremental Term Commitments”) shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, ~~including~~ the other Loan Documents executed by the Borrower, each applicable Incremental Term Lender and the Administrative Agent. Term Commitment Increases may be provided, subject to ~~reflect~~ the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have any right to participate in any Term Commitment Increase or, unless it agrees, be obligated to provide any Term Commitment Increases) or by any Incremental Term ~~Loans provided on a “certain funds” basis)~~Lender. An Incremental Term Facility Amendment may, ~~(ii) reaffirmation agreements and/or~~ without the consent of any other Lenders, effect such amendments to ~~the Collateral~~ any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Term Facility Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Effective Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental NAI-1532775236v11532775236v9 86 Blue Bird Body Company Credit Agreement Term Facility Effective Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in ~~order~~ law, change in fact or change to ~~ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit~~ counsel’s form of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except opinion reasonably satisfactory to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier dateAdministrative Agent). ~~(g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~

Appears in 1 contract

Sources: Credit Agreement (Blue Bird Corp)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to (ax) increase the amount of Term Loans (other than Term B-2 Term Loans) or add one or more additional tranches of term loans (any such Term Loans or additional tranche of term loans, the “Incremental Term Loans”) or (by) add one or more ~~increases in~~ additional tranches of revolving credit commitments (any such revolving credit commitments, the “Incremental Revolving Commitments” and, any loans made thereunder, the “Incremental Revolving Loans”, together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Loans) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) the Unrestricted Incremental First #95787455v10 Lien Amount plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements effected after the Closing Date (including pursuant to debt buy-backs made by the Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof) of Term Loans, Incremental Revolving ~~Credit Commitments of any Facility~~ Loans and Permitted Alternative Incremental Facilities Debt, in each case solely to the extent (x) such Indebtedness is secured on a pari passu basis with the Initial Term Loans and (y) accompanied by permanent commitment reductions if such Indebtedness is revolving in nature, but in each ~~such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that~~ excluding any such ~~Incremental Term Loan is~~ prepayments, repurchases, redemptions or other retirements made with the proceeds of substantially concurrent borrowings of new Loans hereunder or with the proceeds of substantially concurrent incurrences of other long term Indebtedness (~~and after giving effect thereto~~other than borrowings under the ABL Facility or other revolving indebtedness)) (this clause (ii), the “Voluntary Prepayment Amount”) plus (iiii) ~~no Default or Event of Default shall exist~~ unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as (iiA) ~~Parent shall be in~~ if such Indebtedness is secured by any Liens on the Collateral (other than Liens that are junior to the Liens securing the Obligations), the Consolidated First Lien Net Leverage Ratio (calculated on a Pro Forma ~~Compliance with Section 7.09 for~~ Basis but excluding the cash proceeds therefrom) as of the last day of the most recently ended Test Period is not greater than 3.75:1.00, (B) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Liens securing the Obligations, the Consolidated Secured Net Leverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom) as of the last day of the most recently ended Test Period is not greater than 3.75:1.00 and (C) if such Indebtedness is unsecured, the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom) as of the last day of the most recently ended Test Period is not greater than 3.75:1.00 (this clause (iii), the “Incremental Incurrence Test”); provided that (i) for ~~which financial statements have been delivered~~ purposes of calculating any ratio under the Incremental Incurrence Test, the full committed amount of any Incremental Facility or Permitted Alternative Incremental Facilities Debt, in each case then being incurred, shall be treated as being outstanding, (ii) if Indebtedness incurred in reliance on the Incremental Incurrence Test is incurred concurrently with Indebtedness incurred in reliance on the Unrestricted Incremental First Lien Amount and/or the Voluntary Prepayment Amount, the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable, may exceed 3.75:1.00, 3.75:1.00 and 3.75:1.00, respectively, solely to the extent of the principal amount of Indebtedness being incurred concurrently in reliance on the Unrestricted Incremental First Lien Amount and/or the Voluntary Prepayment Amount and (iii) Incremental Facilities may be incurred pursuant to ~~Section 6.01~~the Incremental Incurrence Test prior to utilization of the Unrestricted Incremental First Lien Amount and the Voluntary Prepayment Amount. Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1,000,000 and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $~~50 million (provided~~5,000,000, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth ~~in the next sentence)~~above. ~~Notwithstanding anything to the contrary herein, the aggregate amount of the~~ Each Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment to the Initial Term Loans. To the extent such Incremental Facility is guaranteed or secured, each such Incremental Facility shall not be incurred or guaranteed by any Person that is not a Loan Party and shall not be secured by any assets that do not constitute Collateral and shall be subject to an Applicable Intercreditor Agreement. The Borrower shall be the borrower under any Incremental Facility. (b) Any Incremental Term Loans (other than Refinancing Loans) (i) for purposes of ~~security with~~ prepayments, shall be treated substantially the ~~Revolving Credit Loans~~ same as (and in any event no more favorably than) the Initial Term Loans, (bii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that, if the Effective Yield of any Incremental Term Loans that are secured by any Liens on the Collateral on a pari passu basis with the Liens securing the Obligations exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to the Initial Term Loans shall be adjusted such that the Effective Yield of the Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum (the foregoing, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial Term Loans due to the #95787455v10 application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to the Initial Term Loans), (iii) any Incremental Term Loan shall not mature earlier than 91 days prior to the Latest Maturity Date applicable to the Initial Term Loans (or earlier than the Latest Maturity Date applicable to the Term Loans in the case of any such Incremental Term Loan that is secured with a Lien on the Collateral ranking pari passu with the Liens securing the Obligations), (iv) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any amortization or prepayments on the outstanding Initial Term Loans) and (v) except to the extent otherwise permitted by this Section 2.14, shall have the same terms and conditions as the Initial Term Loans (other than any terms and conditions that (x) apply only to periods after the then Latest Maturity Date with respect to the Term Loans or (y) are otherwise added for the benefit of the Term Lenders hereunder); provided that the foregoing requirements in clauses (b)(iii) and (iv) shall not apply to the extent such Incremental Term Loans constitute customary bridge loans, so long as the long-term Indebtedness into which such customary bridge facility is to be converted or exchanged satisfies the requirements of clauses (b)(iii) and (iv). (c) Any Incremental Revolving Commitments (i) shall not have a final maturity date earlier than the latest Applicable Terminate Date (as defined in the ABL Credit Agreement) applicable to the ABL Facility, (ii) shall not be subject to (x) any mandatory prepayments (other than mandatory prepayments that are customary for revolving credit facilities with respect to loans thereunder exceeding the commitments) or (y) any mandatory commitment reductions or amortization and (iii) except to the extent otherwise permitted by this Section 2.14, shall have the same terms and conditions as the Initial Term Loans (other than any terms and conditions that (x) apply only to periods after the then Latest Maturity Date with respect to the Term Loans, (cy) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of ~~any Incremental~~ the Term ~~Loan or Revolving Commitment Increase~~Lenders hereunder, 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) and subject to clauses (b) and (cz) ~~above,~~ are otherwise added or modified to reflect the ~~amortization schedule (if any) applicable to the~~ revolving credit nature of such Incremental ~~Term Loans shall be determined by Parent~~ Revolving Commitments and ~~the lenders thereof~~are customary for revolving credit facilities). (cd) Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental ~~Term Loans or Revolving Commitment Increases~~Facility. ~~Incremental Term Loans may be made~~Any additional bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to extend Incremental Facilities shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, ~~if any, and~~ the Administrative Agent. ~~The~~ No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Term Commitments in respect of any Incremental Term Loans shall become Term Commitments under this Agreement. An Incremental Facility Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14~~, including without limitation to incorporate the applicable lenders in respect of~~ . Any Incremental ~~Term Loans as “Lenders”~~Facility Amendment, and the ~~Incremental Term Loans as “Loans” and/or “Term Loans”~~use of proceeds thereunder, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be ~~subject~~ pursuant to ~~such further conditions as Parent and~~ documentation to be mutually agreed between the applicable Lenders and ~~Additional Lenders shall agree. The Borrowers may use~~ the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceBorrower. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Facility Amendment ~~shall be subject to~~shall, ~~if requested by the Administrative Agent, receipt~~ unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties ~~contained~~ of each Loan Party set forth in ~~Article V~~ Section 4.02 being true and ~~the other Loan Documents~~ correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date) and (orii) subject to Section 1.09, ~~with respect~~ no Default or Event of Default shall exist, or would result from such issuance of the proceeds of such Incremental #95787455v10 Facility; provided in the case of Incremental Facilities the proceeds of which will be used to finance a Limited Condition Transaction, (1) the only representations and warranties ~~modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except~~ that will be required to ~~the extent that such representations and warranties specifically refer to an earlier date, in which case they shall~~ be true and correct in all material respects ~~(or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects)~~ as of the applicable Incremental Facility Closing Date shall be the Specified Representations (conformed as necessary for such ~~earlier date~~Limited Condition Transaction) and (2) no Specified Events of Default shall be continuing at the time such Limited Condition Transaction is consummated. The proceeds of any Incremental Term Loans will be used only for general corporate purposes (including (without limitation) Permitted Acquisitions). ~~(g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~

Appears in 1 contract

Sources: Term Loan Agreement (United Natural Foods Inc)

Incremental Credit Extensions. (a) ~~Parent may~~. (a) Subject to Section 2.14(f), at any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Company or any Subsidiary Guarantor may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a) one or more additional tranches of term loans (the “Incremental Term Loans”) or (b)~~ to add one or more increases in the Revolving Credit Commitments (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments” or the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Revolving Credit Commitments, Revolving Credit Commitment Increases and Incremental Revolving Credit Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) the greater of (x) $121.0 million and (y) 75.0% of LTM EBITDA (such amount, the “Incremental Starter Amount”) plus (ii) (I) the aggregate amount of any voluntary prepayments, repurchases, redemptions or other retirements of any Indebtedness (in the case of such Indebtedness, to the extent such Indebtedness is (x) secured on a pari passu basis with respect to security with the Obligations, (y) secured on a junior lien basis with the Obligations or (z) unsecured, and solely to the extent it was, in the case of clause (y) or (z), originally incurred pursuant to the Unrestricted Incremental Amount),), payments made pursuant to Section 3.06(a) (to the extent such Indebtedness is retired rather than assigned) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date and (II) in the case of ~~any~~ an Incremental Facility (~~each such increase~~that is being incurred using the Unrestricted Incremental Amount) that serves to effectively extend the maturity of the Revolving Credit Facility and/or any other Incremental Facility, ~~a “~~an amount equal to the portion of the Revolving ~~Commitment Increase”); provided, that upon the effectiveness of~~ Credit Facility and/or any other Incremental ~~Amendment referred~~ Facilities to ~~below and at the time that any~~ be replaced with such Incremental ~~Term Loan is made~~ Facility (such amount under this clause (ii), the “Voluntary Prepayment Amount” and, together with the Incremental Starter Amount, the “Incremental Starter Basket,” the “Unrestricted Incremental Amount”) plus (iii) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, after giving pro forma effect thereto and after giving effect ~~thereto~~to any Permitted Investment consummated in connection therewith, any indebtedness repaid with the proceeds thereof and any other acquisition, disposition, debt incurrence, debt retirement and other appropriate pro forma adjustments and all other appropriate pro forma adjustments (but excluding the cash proceeds of any such Incremental Facilities and Permitted Alternative Incremental Facilities Debt and without giving effect to any amount incurred simultaneously under (x) the Unrestricted Incremental Amount, (y) any other fixed dollar incurrence basket or (z) the Revolving Credit Facility) (and, in each case, for the avoidance of doubt, for purposes of calculating the Interest Coverage Ratio, without giving effect to any interest expense attributable to any such Indebtedness in connection therewith), (iA) ~~no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance~~ if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with ~~Section 7.09~~ the Liens securing the Revolving Credit Facility, the Consolidated First Lien Secured Leverage Ratio for the most recently ended Test Period does not exceed 5.75:1.00, (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Revolving Credit Facility, the Consolidated Total Senior Secured Leverage Ratio for ~~which financial statements have been delivered~~ the most recently ended Test Period does not exceed 6.25:1.00 or (C) if such Incremental Facility is unsecured, the Consolidated Total Leverage Ratio for the most recently ended Test Period does not exceed 6.25:1.00 (this clause (iii), the “Incremental Incurrence Test”); provided that (x) Incremental Facilities may be incurred pursuant to ~~Section 6.01~~this clause (iii) prior to utilization of the Unrestricted Incremental Amount, (y) assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Credit Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness and (z) any Indebtedness originally incurred under the Unrestricted Incremental Amount shall be automatically and immediately (without duplication) reclassified (unless the Company otherwise elects from time to time) as having been incurred under this clause (iii), at any time the Company would be permitted to incur under this clause (iii) the aggregate principal amount of the Indebtedness being so reclassified (for purposes of clarity, with any such reclassification having the effect of increasing the Company’s ability to incur Indebtedness under the Unrestricted Incremental Amount on and after the date of such reclassification by the amount of Indebtedness so re-designated). Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1.0 million and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $50 5.0 million ~~(provided~~in case of Incremental Revolving Credit Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth ~~in the next sentence)~~above. ~~Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for~~ For the avoidance of doubt, ~~those established in respect of Extended Term Loans or Extended~~ the 2026 Incremental Revolving Credit Commitments ~~pursuant to Section 2.16)~~ shall ~~not exceed~~ be incurred under the ~~Maximum~~ Incremental ~~Facilities Amount~~Incurrence Test. (b) [Reserved]. (c) Any Incremental Revolving Credit Commitments (other than Refinancing Revolving Credit Commitments) (i) for purposes of mandatory prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate margins (subject to clauses (iii) and (iv)) as determined by the Company and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit ~~Facility~~ Commitments and (~~including~~ B) in the case of an Additional Revolving Credit Commitment, the maturity date ~~in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the~~ of such Additional Revolving Credit ~~Facility may~~ Commitment shall be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature no earlier than the Maturity Date ~~with respect~~ applicable to the ~~Term Loans~~Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (ciii) any Incremental Revolving Credit Commitments shall not have a ~~shorter~~ final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Credit Commitments shall not have a Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the ~~Term Loans~~Revolving Credit Commitments, and (dv) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and conditions and pursuant to documentation to be determined ~~by Parent; provided that, to~~ between the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent Company and the ~~lenders thereof~~Lenders providing such Incremental Revolving Credit Commitments. (cd) Each notice from ~~Parent~~ the Company pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental ~~Term Loans or~~ Revolving ~~Commitment Increases~~Credit Commitments. ~~Incremental Term Loans may be made~~Any additional bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank~~ Person that elects to extend Incremental Revolving Credit Commitments shall be reasonably satisfactory to the Company and the Administrative Agent (provided, the Administrative Agent’s consent shall only be required if such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or ~~other financial institution~~ delayed) (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable Borrower~~Company, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, ~~if any~~the Administrative Agent and, in the case of any Incremental Revolving Credit Commitments and each L/C Issuer; provided, the Administrative Agent’s and/or L/C Issuer’s consent shall only be required if such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed or otherwise pursuant to Section 10.01. ~~The~~ For the avoidance of doubt, no L/C Issuer is required to act as such for any Additional Revolving Credit Commitments unless they so consent; provided that, no Affiliated Lender or Debt Fund Affiliate shall be permitted to provide Incremental Revolving Credit Commitments. No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Revolving Credit Commitments, unless it so agrees. Commitments in respect of any Incremental Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed by the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such ~~further conditions as Parent~~ Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and ~~the applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ (y) if the proceeds of such Incremental Facility are to be used, in whole or in part, (1) to finance a Permitted Investment, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender~~ Facility Closing Date shall be ~~obligated~~ the Specified Representations and (B) no Specified Default shall have occurred and Section 4.02(b) shall not apply or (2) to ~~provide any~~ finance a Limited Condition Transaction, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental ~~Term Loans or Revolving Commitment Increases, unless it so agrees.~~ Facility Closing Date shall be the Specified Representations and (dB) no Specified Default shall have occurred and Section 4.02(b) shall not apply). Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding ~~(i)~~ participations hereunder in Letters of Credit ~~and (ii) participations hereunder in Swing Line Loans~~ held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s Revolving Credit ~~Commitment and (b) if~~Commitment. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans ~~under~~ are outstanding at the ~~applicable Facility outstanding, such~~ time any Incremental Revolving Credit ~~Loans shall on or prior to~~ Commitments are established, the Revolving Credit Lenders immediately after effectiveness of such ~~Revolving Commitment Increase be prepaid from the proceeds of additional~~ Incremental Revolving Credit ~~Loans under the applicable Facility made hereunder (reflecting~~ Commitments shall purchase and assign at par such ~~increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ amounts of the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred by any~~ outstanding at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 3.05~~holds its Applicable Percentage of all Revolving Credit Loans outstanding immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Any portion of any Incremental Facility incurred other than under the Incremental Incurrence Test may be reclassified at any time, as the Company may elect from time to time, as incurred under the Incremental Incurrence Test if the Company meets the applicable ratio under the Incremental Incurrence Test at such time on a pro forma basis for such reclassification at any time subsequent to the incurrence of such Incremental Facility (or would have met such ratio, in which case, such reclassification shall be deemed to have automatically occurred if not elected by the Company). (f) Notwithstanding anything to the contrary herein or in ~~this~~ any other Loan Document, from and after the Amendment No. 7 Effective Date, (i) the incurrence of any Incremental Facility or Incremental Revolving Credit Commitments pursuant to Section 2.14 ~~or in Article IV or otherwise in this Agreement,~~ shall only be permitted so long as ~~no Event of Default has occurred pursuant~~ the Company is, after giving pro forma effect to ~~Section 8.01(a) or (f), the lenders providing~~ any ~~Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to~~ such Incremental ~~Term Loans such that~~ Facility or Incremental Revolving Credit Commitments, in compliance with the ~~Permitted Acquisition may be consummated on a “certain funds” basis.~~ Financial Covenant (~~f) The effectiveness of any Incremental Amendment shall be subject to,~~ (with the Financial Covenant being tested as if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental ~~Term Loans~~ Facility or Incremental Revolving ~~Commitment Increase~~ Credit Commitment, as applicable, is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except drawn to the extent that such ~~representations~~ Incremental Facility or Incremental Revolving Credit Commitment, as applicable, will actually be drawn on its closing date) and ~~warranties specifically refer to an earlier date, in which case they~~ (ii) the incurrence of any Incremental Facility or Incremental Revolving Credit Commitments shall not be ~~true and correct in all material respects (or, with respect to representations and warranties modified by~~ permitted for the purpose of effecting a ~~materiality or Material Adverse Effect standard, in all respects) as of such earlier date~~Required Lender vote. ~~(g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~

Appears in 1 contract

Sources: Credit Agreement (Shoals Technologies Group, Inc.)

Appears in 1 contract

Sources: Credit Agreement (Gen Digital Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower or any Guarantor may, by notice to the Administrative Agent or the Revolver Agent, as applicable (whereupon the Administrative Agent or the Revolver Agent, as applicable, shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of any Class of Initial Term Loans or add one or more additional tranches of term loans (any such Initial Term Loans or additional tranche of term loans, the “Incremental Term Loans”) ~~or (b)~~ and/or one or more increases in the Revolving Credit Commitments (a “Revolving Credit Commitment Increase”) and/or establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed (i) prior to the Conversion Date, $1,375,000,000 and (ii) after the Conversion Date, the greater of (y) either (I) $1,237,500,000 or (II) with the written consent of the Required Revolving Credit Lenders (and for the avoidance of doubt, without the need for the consent of any other Lender), $1,375,000,000, and (z) 50% of LTM EBITDA (such amount in clauses (i) and (ii) the “Unrestricted Incremental Amount”) plus (iii) the amount of any voluntary prepayments, redemptions, repurchases or other retirements of the Term Loans and any other Indebtedness (in the case of such other Indebtedness, to the extent such Indebtedness is (x) secured on a pari passu basis with respect to security with the Secured Obligations, (y) secured on a junior lien basis with the Secured Obligations or (z) unsecured, and so long as it was, in the case of clause (y) or (z), originally incurred under the Unrestricted Incremental Amount), payments made pursuant to Section 3.06(a) and voluntary permanent reductions of revolving commitments secured on a pari passu basis with respect to security with the Secured Obligations, which reductions are effected after the Closing Date (including pursuant to debt buy-backs made by the Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of revolving commitments in connection with a substantially concurrent issuance of new revolving commitments thereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit ~~Commitments of any~~ Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) (~~each such increase~~this clause (iii), a the “~~Revolving Commitment Increase~~Voluntary Prepayment Amount”~~); provided~~) plus (iv) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving pro forma effect thereto and after giving effect ~~thereto~~to any Permitted Investment consummated in connection therewith and all other appropriate pro forma adjustments (but excluding the cash proceeds of any such Incremental Facilities and without giving effect to any amount incurred simultaneously under (x) the Unrestricted Incremental Amount or the Voluntary Prepayment Amount or (y) the Revolving Credit Facility), (iA) ~~no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance~~ if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with ~~Section 7.09~~ the Liens securing the Initial Term Loans, the Consolidated First Lien Secured Leverage Ratio for the most recently ended Test Period does not exceed 1.35:1.00, (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Initial Term Loans, is secured by assets not constituting Collateral or is unsecured, the Consolidated Total Leverage Ratio for ~~which financial statements have been delivered~~ the most recently ended Test Period does not exceed either (1) 4.00:1.00 or (2) with the written consent of the Required Revolving Credit Lenders (and for the avoidance of doubt, without the need for the consent of any other Lender), 4.50:1.00; provided that Incremental Facilities may be incurred pursuant to ~~Section 6.01~~this clause (iv) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Credit Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iv), the “Incremental Incurrence Test”); provided further that, without the written consent of the Supermajority Revolving Credit Lenders (and for the avoidance of doubt, without the need for the consent of any other Lender), the aggregate principal amount of Specified Senior Indebtedness outstanding at any time shall not exceed the Specified Senior Indebtedness Cap. Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1.0 million and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $50 5.0 million ~~(provided~~in case of Incremental Term Loans or $5.0 million in case of Incremental Revolving Credit Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amountabove. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (aother than Refinancing Term Loans) (i) for purposes of mandatory prepayments, shall ~~rank pari passu or junior~~ be treated substantially the same as (and in ~~right of payment and of security with the Revolving Credit Loans and~~ any event no more favorably than) the Term Loans, (bii) shall have interest rate margins (including “MFN” protection), (subject to clauses (iii) and (iv)), amortization schedule and other terms as determined by the Borrower and the Lenders thereunder (provided that, if the Effective Yield of any Incremental Term Loans that are MFN Qualifying Term Loans exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to such Initial Term Loans shall be adjusted such that the Effective Yield of such Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum, it being understood and agreed that the relative rate differentials in any pricing grid specified in the Applicable Rate shall continue to be maintained (the foregoing, including all qualifications and exceptions thereto, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the applicable Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to such Initial Term Loans), (iii) any Incremental Term Loan shall not ~~mature~~ have a final maturity date earlier than the Maturity Date ~~with respect~~ applicable to the Initial Term Loans, (civ) any Incremental Term Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Initial Term Loans, (dv) shall not be guaranteed by any person other than the Loan Parties and, to the extent secured, shall not be secured by any assets other than the Collateral and (vi) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and conditions and pursuant to documentation to be determined ~~by Parent; provided~~ between the Borrower and the Lenders providing such Incremental Term Loans (provided, that, to the extent any more restrictive term is added for the benefit of any Incremental Term Loans, such ~~terms and documentation are not consistent with the Term Loans~~ term (except to the extent ~~permitted by clauses (a~~only applicable after the Maturity Date of the Initial Term Loans) ~~through (e) above), they~~ shall also be ~~reasonably satisfactory to~~ added for the ~~Administrative Agent~~ benefit of the Term Loans (it being understood that (1) no consent of the Administrative Agent and/or any Lender shall be required in connection with adding such term and (2) to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term ~~Loan or Revolving Commitment Increase~~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~~ all of the Term Loans)); provided that the requirements in clauses (iii) and ~~subject to clauses~~ (iv) of this clause (b) ~~and (c) above, the amortization schedule (if any) applicable~~ shall not apply to ~~the Incremental Term Loans shall be determined by Parent and the lenders thereof~~any Inside Maturity Debt. (c) Any Incremental Revolving Credit Commitments (other than Refinancing Revolving Credit Commitments) (i) for purposes of mandatory prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) any Incremental Revolving Credit Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Credit Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments and (v) shall be on terms and conditions and pursuant to documentation to be determined between the Borrower and the Lenders providing such Incremental Revolving Credit Commitments (it being understood that (1) all other terms applicable to such Incremental Revolving Credit Commitments (other than those specified in clauses (i) through (iv) above) shall not be more restrictive (taken as a whole) than those applicable to the Revolving Credit Facility, except to the extent (a) this Agreement shall be modified to grant the Revolving Credit Facility the benefit of such more restrictive provisions, (b) applicable solely to periods after the Maturity Date in respect of the Revolving Credit Facility in effect at the time of the effectiveness of such Incremental Revolving Credit Commitments or (c) as otherwise agreed by the administrative agent in respect of the Revolving Credit Facility in its reasonable discretion)). (d) Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Credit Commitments shall be ~~made~~reasonably satisfactory to the Borrower and the Administrative Agent (or in the case of Incremental Revolving Credit Commitments, ~~and Revolving Commitment Increases may be~~ the Revolver Agent) (provided, by the applicable Agent’s consent shall only be required if such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed) (any such bank, financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, the applicable Agent and, in the case of any Incremental Revolving Credit Commitments and each L/C Issuer; provided, the applicable Agent’s and/or L/C Issuer’s consent shall only be required if ~~any~~such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed or otherwise pursuant to Section 10.01. For the avoidance of doubt, ~~and the Administrative Agent~~no L/C Issuer is required to act as such for any Additional Revolving Credit Commitments unless they so consent. ~~The~~ No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in Additional Lenders with respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such ~~further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the~~ Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement~~Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments, unless it so agrees. . Commitments in respect of any Incremental Term Loans or Incremental Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the applicable Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Additional Lenders, be subject to the satisfaction on the date thereof (deach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) if the proceeds of such Incremental Facility are to be used, in whole or in part, (1) to finance a Permitted Investment, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and if applicable, customary acquisition agreement representations and (B) no Specified Default shall have occurred and Section 4.02(b) shall not apply or (2) to finance a Limited Condition Transaction, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (B) Section 4.02(b) shall not apply). The proceeds of any Incremental Term Loans will be used only for general corporate purposes (including, without limitation, other Investments not prohibited hereunder and Restricted Payments). Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding ~~(i)~~ participations hereunder in Letters of Credit ~~and (ii) participations hereunder in Swing Line Loans~~ held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s Revolving Credit ~~Commitment and (b) if~~Commitment. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.Cre

Appears in 1 contract

Sources: Credit Agreement (Frontier Communications Parent, Inc.)

Incremental Credit Extensions. (a) ~~Parent may,~~ The Borrower at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans (the “Incremental Term Loans”) or (b) one or more increases in the amount of the Revolving Credit Commitments of any Facility or the addition of a new tranche of the Revolving Credit Facility (each such ~~increase~~increase or new Revolving Credit Facility, a “Revolving Commitment Increase” and, together with any Incremental Term Loans, an “Incremental Facility”)~~; provided~~, provided that upon the effectiveness of any Incremental Amendment referred to ~~below~~ below, no Event of Default shall exist and at the time that any such Incremental Term Loan (other than any Incremental Term Loan under the Tranche A Term Facility to be made during the Certain Funds Period) is made (and after giving effect thereto~~), (i~~) no ~~Default or~~ Event of Default shall 97 1002217597 1001820109v3 exist ~~and~~ (~~ii) Parent shall be~~ except in ~~Pro Forma Compliance~~ connection with ~~Section 7.09 for the most recently ended Test Period for~~ a Permitted Acquisitionan acquisition or Investment in which ~~financial statements have been delivered~~ case no Event of Default pursuant to Section ~~6.01~~8.01(a) or (f) shall exist). Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $~~50 million~~ 50,000,000 (~~provided,~~ provided that such amount may be less than $~~50 million~~ 50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not ~~exceed~~ exceed, at the time the respective Incremental Amendment becomes effective (and after giving pro forma effect to the Incurrence of Indebtedness in connection therewith), the Maximum Incremental Facilities Amount~~. (b)~~ . Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect ~~thereof but excluding up-front commitment or similar fees); provided,~~ thereof) (provided the ~~Applicable Rate with respect to the Revolving Credit Facility~~ applicable margin applicable thereto may be increased if necessary to be consistent with that ~~required by the lenders providing~~ for the Revolving Commitment Increase). The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, which, for the avoidance of doubt, may be unsecured, (b) except in the case of the Tranche A Term Facility, shall not mature earlier than the latest Maturity Date with respect to the Term Loans, (c) except in the case of the Tranche A Term Facility, shall not have a shorter Weighted Average Life to Maturity than the then longest remaining Weighted Average Life to Maturity of the Term Loans, (d) except as set forth above and, in the case of the Tranche A Term Facility, except as set forth below, shall be ~~entitled~~ treated substantially the same as the Initial Term Loans (in each case, including with respect to ~~share in~~ mandatory and voluntary ~~prepayments on a ratable (or less than ratable, but in no event greater than ratable~~prepayments) ~~basis with the Term Loans,~~ and (e) ~~shall bear interest at rates and be entitled to upfront fees as~~ the Applicable Rate for the Incremental Term Loans shall be determined by ~~Parent~~ the Borrower and the applicable new Lenders; provided, however, that if (i) until April 11, 2015, the ~~All-In Yield~~ interest rate margins for the Incremental Term Loans shall not be greater than the interest rate margins that ~~are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield~~ may be payable with respect to ~~the~~ Term Loans ~~by more than~~ plus 50 basis ~~points, then~~ points (and the interest rate margins applicable to any class of the Term Loans shall be increased ~~so that such excess shall be only 50 basis points. The~~ to the extent necessary to achieve the foregoing) and (ii) solely for purposes of the foregoing clause (i), (x) the interest rate margins applicable to any Term Loans or Incremental Term Loans shall ~~otherwise~~ be deemed to include all upfront or similar fees or original issue discount payable generally to Lenders providing such Term Loans or such Incremental Term Loans based on an assumed four-year life to maturity), (y) customary arrangement or commitment fees payable to the Arrangers (or their respective affiliates) in connection with the Term Loans or to one or more arrangers (or their affiliates) of the Incremental Term Loans shall be excluded; and (z) if the LIBOR or Base Rate “floor” for the Incremental Term Loans is greater than the LIBOR or Base Rate “floor,” respectively, for the existing Term Loans, the difference between such floor for the Incremental Term Loans and the existing Term Loans shall be equated to an increase in the Applicable Rate, provided that that (i) the Incremental Term Loans shall be on terms and pursuant to documentation to be determined by ~~Parent;~~ the Borrower, provided that, to the extent such terms and documentation are not consistent ~~with~~ with, the Initial Term ~~Loans~~ Facility (except to the extent permitted by clauses (ab), (c) ~~through~~ and (e) ~~above~~above and, in the case of the Tranche A Term Facility, except as permitted by clause (iii) below)), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental ~~Term Loan or Revolving Commitment Increase~~Facility, no consent shall be required from the Administrative 98 1002217597 1001820109v3 Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any ~~corresponding~~ existing ~~Term Loans~~Facility), and (ii) ~~and~~ subject to clauses (b) and (c) above, the maturity date and the amortization schedule ~~(if any)~~ applicable to the Incremental Term Loans shall be determined by ~~Parent~~ the Borrower and the lenders ~~thereof.~~ thereof and (ciii) the Incremental Amendment with respect to the Tranche A Term Facility may, without the consent of the Lenders (other than any Lender or Additional Lender agreeing to have a Commitment in respect of the Tranche A Term Facility), add a financial covenant solely for the benefit of the Lenders under the Tranche A Term Facility and, upon the 2015 Revolving Credit Facility Effective Date (if any), the Revolving Credit Lenders (and not, for the avoidance of doubt, any other Lenders) and make other corresponding changes to the Loan Documents, including provide that (x) only Lenders holding at least a majority of the Tranche A Term Facility and, upon the 2015 Revolving Credit Facility Effective Date (if any), the Revolving Credit Facility (voting as one Facility) (and not, for the avoidance of doubt, any other Lenders) shall have the ability to (and be required in order to) amend or waive a breach of such financial covenant, and (y) a breach of such financial covenant shall not constitute an Event of Default with respect to other Facilities or trigger a cross-default under other Facilities until the date on which Tranche A Term Loans and, upon the 2015 Revolving Credit Facility Effective Date (if any), the Revolving Credit Loans have been accelerated and/or the Tranche A Term Commitments (if any) and, upon the 2015 Revolving Credit Facility Effective Date (if any), the Revolving Credit Commitments have been terminated, in each case, by the Tranche A Term Lenders and, upon the 2015 Revolving Credit Facility Effective Date (if any), the Revolving Credit Lenders (voting as one Facility).. Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Lender has an obligation to make an Incremental Term Loan or provide a Revolving Commitment Increase, as applicable) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”)~~; provided~~, provided that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment ~~shall~~may, without the consent of any Loan Party other than the Borrower, the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and ~~Parent~~ the Borrower, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such ~~further~~ conditions as ~~Parent and~~ the ~~applicable Lenders and Additional Lenders~~ parties thereto shall agree. The ~~Borrowers may~~ Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.99 1002217597 1001820109v3

Appears in 1 contract

Sources: Credit Agreement (Activision Blizzard, Inc.)

Incremental Credit Extensions. (a) ~~Parent may~~Subject to Section 2.14(f), (including the priorities applicable to the Priority Payment Obligations), at any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower or any Subsidiary Guarantor may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of any Class of Initial Term Loans or add one or more additional tranches of term loans (any such Initial Term Loans or additional tranche of term loans, the “Incremental Term Loans”) ~~or (b)~~ and/or one or more increases in the Revolving Credit Commitments (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) the greater of (x) $250.0 million and (y) 25.0% of LTM EBITDA (such amount the “Unrestricted Incremental Amount”) plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans and any other Indebtedness (in the case of such other Indebtedness, to the extent such Indebtedness is (y) secured on a pari passu basis with respect to security with the Obligations, (x) secured on a junior lien basis with the Obligations or (z) unsecured, and so long as it was not, in the case of clause (x) or (z), originally incurred under the Incremental Incurrence Test), payments made pursuant to Section 3.06(a) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (including pursuant to debt buy-backs made by Holdings or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) (~~each such increase~~this clause (ii), a the “~~Revolving Commitment Increase~~Voluntary Prepayment Amount”~~); provided~~) plus (iii) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving pro forma effect thereto and after giving effect ~~thereto~~to any Permitted Investment consummated in connection therewith and all other appropriate pro forma adjustments (but excluding the cash proceeds of any such Incremental Facilities and without giving effect to any amount incurred simultaneously under (x) the Unrestricted Incremental Amount or the Voluntary Prepayment Amount or (y) the Revolving Credit Facility), (iA) ~~no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance~~ if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with ~~Section 7.09~~ the Liens securing the Initial Term Loans, the Consolidated First Lien Secured Leverage Ratio for the most recently ended Test Period does not exceed 2.25:1.00, (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Initial Term Loans, is secured by assets not constituting Collateral or is unsecured, the Consolidated Total Leverage Ratio for ~~which financial statements have been delivered~~ the most recently ended Test Period does not exceed 3.50:1.00; provided that Incremental Facilities may be incurred pursuant to ~~Section 6.01~~this clause (iii) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Credit Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the “Incremental Incurrence Test”). Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1.0 million and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $50 5.0 million ~~(provided~~in case of Incremental Term Loans or $5.0 million in case of Incremental Revolving Credit Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amountabove. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (aother than Refinancing Term Loans) (i) for purposes of mandatory prepayments, shall ~~rank pari passu or junior~~ be treated substantially the same as (and in ~~right of payment and of security with the Revolving Credit Loans and~~ any event no more favorably than) the Term Loans, (bii) shall have interest rate margins (including “MFN” protection), (subject to clauses (iii) and (iv)), amortization schedule and other terms as determined by the Borrower and the Lenders thereunder (provided that, if the Effective Yield of any Incremental Term Loans that are MFN Qualifying Term Loans exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to such Initial Term Loans shall be adjusted such that the Effective Yield of such Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum, it being understood and agreed that the relative rate differentials in any pricing grid specified in the Applicable Rate shall continue to be maintained (the foregoing, including all qualifications and exceptions thereto, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the applicable Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to such Initial Term Loans), (iii) any Incremental Term Loan shall not ~~mature~~ have a final maturity date earlier than the Maturity Date ~~with respect~~ applicable to the Initial Term Loans, (civ) any Incremental Term Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Initial Term Loans, (dv) shall not be guaranteed by any person other than the Loan Parties and, to the extent secured, shall not be secured by any assets other than the Collateral and (vi) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and conditions and pursuant to documentation to be determined ~~by Parent; provided~~ between the Borrower and the Lenders providing such Incremental Term Loans (provided, that, to the extent any more restrictive term is added for the benefit of any Incremental Term Loans, such ~~terms and documentation are not consistent with the Term Loans~~ term (except to the extent ~~permitted by clauses (a~~only applicable after the Maturity Date of the Initial Term Loans) ~~through (e) above), they~~ shall also be ~~reasonably satisfactory to~~ added for the ~~Administrative Agent~~ benefit of the Term Loans (it being understood that (1) no consent of the Administrative Agent and/or any Lender shall be required in connection with adding such term and (2) to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term ~~Loan or Revolving Commitment Increase~~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~~ all of the Term Loans)); provided that the requirements in clauses (iii) and ~~subject to clauses~~ (iv) of this clause (b) ~~and (c) above, the amortization schedule (if any) applicable~~ shall not apply to ~~the Incremental Term Loans shall be determined by Parent and the lenders thereof~~any Inside Maturity Debt. (c) Any Incremental Revolving Credit Commitments (other than Refinancing Revolving Credit Commitments) (i) for purposes of mandatory prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) any Incremental Revolving Credit Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Credit Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments and (v) shall be on terms and conditions and pursuant to documentation to be determined between the Borrower and the Lenders providing such Incremental Revolving Credit Commitments. (d) Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Credit Commitments shall be ~~made,~~ reasonably satisfactory to the Borrower and ~~Revolving Commitment Increases may be~~ the Administrative Agent (provided, by the Administrative Agent’s consent shall only be required if such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed) (any such bank, financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the ~~applicable~~ Borrower, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, ~~if any~~the Administrative Agent and, in the case of any Incremental Revolving Credit Commitments and each L/C Issuer; provided, the Administrative Agent’s and/or L/C Issuer’s consent shall only be required if such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed or otherwise pursuant to Section 10.01. ~~The~~ For the avoidance of doubt, no L/C Issuer is required to act as such for any Additional Revolving Credit Commitments unless they so consent. No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in Additional Lenders with respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such ~~further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the~~ Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement~~Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments, unless it so agrees. . Commitments in respect of any Incremental Term Loans or Incremental Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Additional Lenders, be subject to the satisfaction on the date thereof (deach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) if the proceeds of such Incremental Facility are to be used, in whole or in part, (1) to finance a Permitted Investment, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (B) no Specified Default shall have occurred and Section 4.02(b) shall not apply or (2) to finance a Limited Condition Transaction, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (B) Section 4.02(b) shall not apply). The proceeds of any Incremental Term Loans will be used only for general corporate purposes (including, without limitation, other Investments not prohibited hereunder and Restricted Payments). Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ▇L▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding ~~(i)~~ participations hereunder in Letters of Credit ~~and (ii) participations hereunder in Swing Line Loans~~ held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit ~~Lender~~L▇▇▇▇▇’s Revolving Credit ~~Commitment and (b) if~~Commitment. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans ~~under~~ are outstanding at the ~~applicable Facility outstanding, such~~ time any Incremental Revolving Credit ~~Loans shall on or prior to~~ Commitments are established, the Revolving Credit Lenders immediately after effectiveness of such ~~Revolving Commitment Increase be prepaid from the proceeds of additional~~ Incremental Revolving Credit ~~Loans under the applicable Facility made hereunder (reflecting~~ Commitments shall purchase and assign at par such ~~increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ amounts of the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred by any~~ outstanding at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 3.05~~holds its Applicable Percentage of all Revolving Credit Loans outstanding immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness Any portion of any Incremental ~~Amendment shall~~ Facility incurred other than under the Incremental Incurrence Test may be ~~subject to~~reclassified at any time, as the Borrower may elect from time to time, as incurred under the Incremental Incurrence Test if ~~requested by~~ the ~~Administrative Agent, receipt by~~ Borrower meets the ~~Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on~~ applicable ratio under the ~~Closing Date (conformed as appropriate, including to reflect any~~ Incremental ~~Term Loans provided~~ Incurrence Test at such time on a ~~“certain funds” basis), (ii) reaffirmation agreements and/or~~ pro forma basis for such ~~amendments~~ reclassification at any time subsequent to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date incurrence of such Incremental ~~Amendment, except to the extent that~~ Facility (or would have met such ~~representations and warranties specifically refer to an earlier date~~ratio, in which ~~case they~~ case, such reclassification shall be ~~true and correct in all material respects (or, with respect~~ deemed to ~~representations and warranties modified~~ have automatically occurred if not elected by ~~a materiality or Material Adverse Effect standard, in all respects) as of such earlier date~~the Borrower). ~~(g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~

Appears in 1 contract

Sources: Credit Agreement (Windstream Parent, Inc.)

Appears in 1 contract

Sources: Credit Agreement (Nexstar Media Group, Inc.)

Appears in 1 contract

Sources: Credit Agreement (Armored AutoGroup Inc.)

Incremental Credit Extensions. (a) ~~Parent~~ The Borrowers may, at any time or from time to time after the ~~Closing~~ Effective Date, by notice from the Borrower Representative to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ one or more additional tranches of term loans and/or one or more increases in the amount of any Class of Term Loans then outstanding (the commitments thereof, the “Incremental Term Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Lender making such loans, an “Incremental Term Lender”) and/or one or more additional tranches of revolving loans (bthe “Additional/Replacement Revolving Commitments”) and/or one or more increases in the amount of the Revolving ~~Credit~~ Commitments of any ~~Facility~~ Class (each such increase, a “Revolving Commitment Increase”, the loans thereunder and under any Additional/Replacement Revolving Commitments, the “Incremental Revolving Loans”, and a Lender making such a commitment, an “Incremental Revolving Lender”); ~~provided~~provided that: (i) [reserved]; (ii) after giving effect to any such Additional/Replacement Revolving Commitments, ~~that upon the effectiveness of~~ any ~~Incremental Amendment referred to below~~ such Revolving Commitment Increase and ~~at the time that~~ any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary hereinLoans, the aggregate amount of ~~the Incremental Term Loans and the~~ such Additional/Replacement Revolving Commitments, Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall ~~otherwise be on terms and pursuant to documentation to be determined by Parent; provided that,~~ not exceed an amount equal to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-sum of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Emerald Expositions Events, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to add one or more additional tranches of term A loans (the “Incremental Term A Loans”) or term B loans (bthe “Incremental Term B Loans” and, together with the Incremental Term A Loans, the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or one or more increases in the Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “Incremental Facilities”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment no Default or Event of Default has occurred and is continuing or shall result therefrom. Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments), shall not exceed the greater of (i) the sum of (x) $200,000,000 plus (y) the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder or any ~~Facility~~ reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder shall not increase the calculation of the amount under this clause (~~each such increase~~y)) and (ii) an unlimited amount so long as, ~~a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time~~ after giving Pro Forma Effect thereto (assuming that any such Incremental ~~Term Loan is made (~~Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect ~~thereto)~~to any Specified Transaction consummated in connection therewith and all other appropriate Pro Forma Adjustments, the First Lien Net Leverage Ratio does not exceed 4.00:1.00. (b) The Incremental Facilities are subject to the following terms and conditions: (i) each Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Obligations hereunder; (ii) no existing Lender will be required to participate in any such Incremental Facility without its consent; (iii) no Default or Event of Default ~~shall~~ would exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount.after giving effect thereto; (biv) ~~Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including~~ the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The of any Incremental Term A Loans ~~(a)~~ shall ~~rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature~~ be no earlier than the Maturity Date ~~with respect to~~ of the Term A Loans, ~~(c) shall not have a shorter~~ and the Weighted Average Life to Maturity of such Incremental Term A Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term A Loans, ; (dv) the maturity date of any such Incremental Term B Loans shall be ~~entitled~~ no earlier than the Maturity Date of the Term B Loans and the Weighted Average Life to ~~share~~ Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans; (vi) in the case of Incremental Revolving Commitments, the maturity date of such Incremental Revolving Commitments shall be the same as the Maturity Date of the Revolving Credit Facility, such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility and ~~voluntary prepayments~~ the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility; (vii) in the case of an Incremental Revolving Facility, the maturity date of such Incremental Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, the Incremental Revolving Facility shall be on substantially the same terms and pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and borrowings and repayments under the Incremental Revolving Facility shall be made on a ~~ratable (or less than ratable, but in no event greater than ratable)~~ pro rata basis with the ~~Term Loans,~~ Revolving Credit Facility; (viii) the interest rate margins and (esubject to clauses (iv), (v) ~~shall bear interest at rates~~ and ~~be entitled~~ (vii), as appropriate) amortization schedule applicable to ~~upfront fees as~~ any Incremental Term Loans or Incremental Revolving Facilities shall be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders~~lenders thereunder; ~~provided, however,~~ provided that if in the ~~All-In Yield~~ event that the interest rate margins for any Incremental Term A Loans, any Incremental Term B Loans ~~that~~ (to the extent such Incremental Term B Loans are incurred ~~under this Section 2.14~~ on a or prior to the date that is ~~prior to~~ eighteen months after the ~~twelve~~ Closing Date), or any Incremental Revolving Facility (12in each case, other than Refinancing Term Loans and Refinancing Revolving Commitments) ~~month anniversary of~~ are higher than the ~~Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to~~ interest rate margins for the Term A Loans, Term B Loans or the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term A Loans, Term B Loans or Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term A Loans, Incremental Term B Loans or Incremental Revolving Facility, as the case may be, minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Term A Loans and the Term A Loans, the Incremental Term B Loans and the Term B Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (x) customary arrangement or commitment fees payable to the Lead Arrangers (or their affiliates) in connection with the Term A Loans, Term B Loans or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any Incremental Term A Loans, Incremental Term B Loans or Incremental Revolving Facility shall be excluded, (y) original issue discount (“OID”) and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (z) if the Incremental Term A Loans, Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term A Loans, Term B Loans or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term A Loans, Term B Loans or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term A Loans, Term B Loans or the Revolving Credit Facility, as applicable, shall be increased ~~so that~~ to the extent of such ~~excess~~ differential between interest rate floors; (ix) any Incremental Term A Loans, for purposes of prepayments, shall be ~~only 50 basis points. The~~ treated substantially the same as (and in any event no more favorably than) the Term A Loans; (x) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans; (xi) any Incremental Term Loans or any Incremental Revolving Facility shall ~~otherwise~~ be on terms and pursuant to documentation to be ~~determined by Parent~~determined; provided that, to the extent such terms and documentation are not consistent with the Term A Loans, the Term B Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by ~~clauses~~ clause (aiv), (v) ~~through~~ and (evii) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (~~it being understood~~ xi), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence and (B) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the ~~extent~~ period after the Maturity Date of the Term B Loans); provided, however, that ~~any financial maintenance covenant~~ a certificate of a Responsible Officer delivered to the Administrative Agent at least five (5) Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and (xii) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is ~~added for~~ not less than $50,000,000 in the ~~benefit~~ case of any Incremental Term Loans or Incremental Term Loan Increases or $25,000,000 in the case of any Incremental Revolving ~~Commitment Increase, no consent shall be required from the Administrative Agent~~ Facilities or ~~any Lender to the extent~~ Incremental Revolving Commitments; provided that such ~~financial maintenance covenant is also added for~~ amount may be less than the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c)~~ applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above~~, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans or Revolving Commitment Increases.~~ Loans, Incremental Term ~~Loans may be made~~Loan Increases, ~~and~~ Incremental Revolving ~~Commitment Increases may be provided~~Facilities and/or Incremental Revolving Commitments. Any additional bank, ~~by any~~ financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to provide the applicable Incremental Facility shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such ~~further conditions as Parent~~ Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) the ~~applicable Lenders~~ Incremental Closing Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section 4.02(a) and ~~Additional Lenders shall agree. The Borrowers may use~~ (z) to the extent the proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, the conditions in Section 4.02 may be subject to customary “SunGard” limitations (or, for an acquisition of a foreign entity, “certain funds” limitations)). The proceeds of any Incremental Term Loans and ~~Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any~~ Incremental Term ~~Loans or Revolving Commitment Increases, unless it so agrees.~~ Loan Increases will be used only for general corporate purposes (d) including Permitted Acquisitions). Upon each increase in the Revolving ~~Credit~~ Commitments pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (each a “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Corporate Executive Board Co)

Incremental Credit Extensions. (a) ~~Parent~~ The Borrowers may, at any ~~time~~ time, on one or ~~from time~~ more occasions deliver a written request to ~~time after the Closing Date, by notice to the~~ Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders~~), request~~ ) to (ai) add one or more ~~additional~~ new tranches of term facilities and/or increase the principal amount of the Term Loans or any Additional Term Loans by requesting new term loans commitments to be added to such Loans (~~the~~ any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) or and/or (bii) add one or more ~~increases~~ new tranches of incremental revolving facilities and/or increase the principal amount of any such tranche of incremental revolving facilities (each, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed, as of any date of determination, (x) the greater of (I) $238,100,000 and (II) the Consolidated Adjusted EBITDA for the most recently ended Test Period for which financial statements have been delivered in accordance with Section 6.01(b) or 6.01(c), as applicable (the “Incremental Amount”) (less the aggregate principal amount of all Incremental Equivalent Debt incurred or issued in reliance on the Incremental Amount) , plus (y) in the ~~amount of the Revolving Credit Commitments of any Facility (each such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness~~ case of any Incremental ~~Amendment referred~~ Facility that effectively extends the Maturity Date or any other maturity date with respect to ~~below and at~~ any Term Facility or any Revolving Facility, an amount equal to the ~~time that~~ prepayment to be made with respect to the Term Loans, Extended Term Loans and/or Replacement Term Loans and/or the permanent commitment reduction to be made with respect to any Revolving Facility or any Additional Revolving Facility, in each case to be replaced with such Incremental ~~Term Loan is made~~ Facility, plus (~~and~~ z) an unlimited amount so long as, in the case of this clause (z), after giving effect ~~thereto~~to such Incremental Facility, the First Lien Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(b) or (c), as applicable, would not exceed 3.30:1.00 (it being understood that for purposes of clause (z) of this Section 2.14(a), (iA) ~~no Default or Event of Default shall exist and (ii) Parent~~ any Incremental Revolving Facilities shall be ~~in Pro Forma Compliance~~ deemed to be fully drawn, (B) if the proceeds of the relevant Incremental Facility will be applied to finance an acquisition or other Investments permitted under this Agreement, compliance with ~~Section 7.09~~ the First Lien Leverage Ratio will be determined as of the date of the execution of the definitive agreement with respect thereto for the most recently ended Test Period for which financial statements have been delivered pursuant to Section ~~6.01. Each tranche~~ 6.01(b) or (c), as applicable, and (C) the Cash proceeds of NY\6497185.2 the relevant Incremental Facility or Incremental Equivalent Debt shall be excluded in calculating the Unrestricted Cash Amount used in determining the First Lien Leverage Ratio) (the amounts described in clauses (x) and (z) above, the “Incremental Cap”) (it being understood that (I) the Borrowers shall be deemed to have used amounts under clause (y) prior to utilization of amounts under clause (x) or (z), and the Borrowers shall be deemed to have used amounts under clause (z) (to the extent compliant therewith) prior to utilization of amounts under clause (x), and (II) Loans may be incurred under both clauses (x) and (z), and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under clause (z) above and then calculation the incurrence under clause (x) above) specifying the amount so requested; provided that: (i) each such request shall be in an amount not less than $5,900,000, (ii) except as separately agreed from time to time between the Borrowers and any Lender, no Lender shall be obligated to provide all or any portion of any Incremental Commitment and the determination to provide such commitment shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower Representative and the lenders providing such Incremental Facility or Incremental Loans; provided that, in the case of Incremental Term Loans or Incremental Term Facilities that are incurred pursuant to clause (z) above and ~~each Revolving Commitment Increase shall~~ are pari passu in right of payment and with respect to security with the Term Loans, such interest rate will not be ~~in an aggregate principal amount that is not less~~ more than ~~$50 million (provided, that such amount may be less~~ 0.50% higher than ~~$50 million if such amount represents all remaining availability under~~ the ~~limit set forth in the next sentence). Notwithstanding anything~~ corresponding interest rate applicable to the ~~contrary herein,~~ Initial Term Loans unless the ~~aggregate amount of~~ interest rate margin with respect to the Initial Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans ~~and~~ or Incremental Term Facility, minus, 0.50%; provided, further, that in determining the ~~Revolving Commitment Increases~~ applicable interest rate: (~~other than, for~~ w) original issue discount or upfront fees paid by the ~~avoidance of doubt, those established~~ Borrowers in ~~respect of Extended~~ connection with the Initial Term Loans or ~~Extended Revolving Credit Commitments pursuant~~ such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to ~~Section 2.16~~maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall ~~not exceed~~ be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the ~~Maximum~~ Arrangers (or their Affiliates) in their respective capacities as such in connection with the Initial Term Loans or to one or more arrangers (or their Affiliates) in their capacities as such applicable to such Incremental ~~Facilities Amount.~~Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Initial Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (bv) ~~Any Revolving Commitment Increase~~ the final maturity date with respect to any Incremental Term Loans shall be on no earlier than the Original Term Maturity Date, (vi) (A) any Incremental Revolving Facility shall be subject to substantially the same terms and ~~pursuant to~~ conditions (other than pricing, fees, maturity and other immaterial terms which shall be determined by the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by Borrowers and the lenders providing such Incremental Revolving Facility as the then-existing Revolving ~~Commitment Increase. The~~ Facility) and (B) no Incremental Revolving Facility shall have a final maturity date earlier than (or require commitment reductions prior to) the Original Revolving Maturity Date, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the Weighted Average Life to Maturity of the then-existing Term Loans (awithout giving effect to any prepayments thereof), (viii) ~~shall~~ any Incremental Facility (A) will be subject to, and governed by, the Intercreditor Agreement and (B) may rank pari passu or junior in right of payment and of pari passu or junior with respect to security with the ~~Revolving Credit~~ Term Loans ~~and the Term Loans,~~ or may be unsecured, (bix) ~~shall not mature earlier~~ any prepayment (other than ~~the Maturity Date with respect to the Term Loans, (c~~scheduled amortization payments) ~~shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity~~ of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are ~~incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary~~ pari passu in right of ~~the Amendment No. 2 Effective Date, shall exceed the All-In Yield~~ payment and pari passu with respect to security with the ~~Term Loans by more than 50 basis points, then the interest rate margins applicable to the~~ Initial Term Loans shall be ~~increased so~~ made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans, Extended Term Loans and Replacement Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such ~~excess shall be only 50 basis points. The~~ Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (x) (A) except as otherwise agreed by the lenders providing such Incremental Facilities in connection with a Permitted Acquisition, no Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility and (B) except as otherwise agreed by the lenders providing such Incremental Facilities in connection with a Permitted Acquisition, the representations and warranties in the Loan Documents shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) immediately prior to, and after giving effect to, the incurrence of such Incremental Facility and the use of proceeds thereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date, (xi) on the date of the making of any Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Section 2.08, such Incremental Term Loans shall be added to (and constitute a part of) each Borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding Borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class, (xii) the covenants and events of default of any Incremental Term Facility or Incremental Term Loans, if not consistent with the terms ~~and pursuant~~ of then-existing Term Loans, shall not be materially more restrictive to ~~documentation to be determined by Parent; provided~~ the Borrowers, when taken as a whole, than the terms of the then-existing Term Loans, unless (1) the Lenders under the then-existing Term Loans also receive the benefit of such more restrictive terms (it being understood that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any ~~financial maintenance~~ covenant is added for the benefit of any Incremental Term ~~Loan or Revolving Commitment Increase~~Facility, 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~~ then-existing Term Loans) or (2) any such provisions apply after the Original Term Maturity Date, and (xiii) except as otherwise required or permitted in clauses (i) through (xii) above, all other terms of such Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative and ~~subject to clauses~~ the lenders providing such Incremental Term Facilities. (b) ~~and (c) above, the amortization schedule (if any) applicable to the~~ Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans Commitments may be ~~made, and Revolving Commitment Increases may be provided,~~ provided by any existing ~~Lender~~ Lender, or by any other ~~bank or other financial institution~~ lender (any such other ~~bank or other financial institution~~ lender being called an “Additional Lender”); ~~provided,~~ provided that each of the Administrative ~~Agent, each Swing Line Lender~~ Agent and ~~each~~ L/C ~~Issuer~~ Issuers shall have consented (such consent not to be unreasonably withheld) to such ~~Lender’s or~~ Additional Lender’s ~~making~~ providing such Incremental ~~Term Loans or providing such Revolving Commitment Increases~~ Commitments if such consent would be required under Section ~~10.06(b~~10.05(b) for an assignment of Loans ~~or Revolving Credit Commitments~~to such Additional Lender; provided, ~~as applicable~~further, that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 10.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional ~~Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of~~ Lender providing a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent portion of the ~~Agents or the Lenders, effect such amendments~~ Incremental Commitments shall execute and deliver to ~~this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of~~ the Administrative Agent and ~~Parent~~ the Borrower Representative all such documentation (including an amendment to ~~effect~~ this Agreement or any other Loan Document) as may be NY\6497185.2 reasonably required by the ~~provisions~~ Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of ~~this Section 2.14~~such Incremental Commitments, ~~including without limitation~~ each Additional Lender added as a new Lender pursuant to ~~incorporate the applicable lenders in respect of~~ such Incremental ~~Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”,~~ Commitments shall become a Lender for all ~~applicable~~ purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by in connection with this Agreement~~. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees~~. (d) ~~Upon each increase in~~ [reserved] (e) To the extent the Borrowers elect to implement any Incremental Revolving Facility, then notwithstanding any other provision of this Agreement to the contrary, (i) the Borrowers shall be permitted to modify the terms of this Agreement with the consent of only the Administrative Agent to appropriately incorporate revolving facility mechanics (including those related to payments, prepayments, purchases of participations and reallocation mechanisms and letter of credit and/or other subfacilities) and other provisions and commitment schedules relating to Revolving Tranches generally and (ii) to the extent any other Incremental Revolving Facility or any Extended Revolving Credit Commitments or Replacement Revolving Facility then exists, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on any such Revolving Tranches (and related outstandings), (B) repayments required upon the maturity date of any such Revolving Tranches and (C) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any such Revolving Tranches after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis with all other Revolving Tranches, (2) all letters of credit under any such Revolving Tranches shall be participated on a pro rata basis by all lenders with commitments under such Revolving Tranches and (3) the permanent repayment of Loans with respect to, and termination of commitments under, any such Revolving Tranches after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis with all other revolving facilities, except that the Borrowers shall be permitted to permanently repay and terminate commitments of any such revolving facility on a greater than pro rata basis as compared to any other revolving facilities with a later maturity date than such revolving facility. (f) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.14, if such Incremental Revolving Facility is through an increase to the existing Revolving Credit Facility (arather than by implementing a new Incremental Revolving Commitment), (i) each ~~Revolving Credit~~ revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Lender providing a portion of the~~ relevant Incremental Revolving ~~Commitment Increase (each a “Revolving Commitment Increase~~ Facility Lender”), and each ~~such~~ relevant Incremental Revolving ~~Commitment Increase~~ Facility Lender will automatically and without further act be deemed to have assumed ~~(in the case of an increase to the Revolving Credit Facility only),~~ a portion of such ~~Revolving Credit~~ revolving ▇▇▇▇▇▇’s participations hereunder in outstanding ~~Letters~~ letters of ~~Credit and Swing Line Loans~~ credit, if applicable, such that, after giving effect to each ~~such~~ deemed assignment and assumption of participations, ~~the percentage~~ all of the ~~aggregate outstanding~~ revolving Lenders’ (iincluding each Incremental Revolving Facility Lender) participations hereunder in ~~Letters~~ letters of ~~Credit~~ credit and (ii) ~~participations hereunder in Swing Line~~ the existing Revolving Lenders of the applicable Class shall assign Revolving Loans ~~held by each~~ to certain other Revolving ~~Credit Lender~~ Lenders of such Class (including ~~each~~ the revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving ~~Commitment Increase Lender) will equal~~ Loans, in each case to the ~~percentage~~ extent necessary so that all of the ~~aggregate~~ Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of ~~all Revolving Credit Lenders represented by~~ such ~~Revolving Credit Lender’s~~ Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.14); it being understood and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (fg) The ~~effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by~~ Lenders hereby irrevocably authorize the Administrative Agent ~~of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including~~ to ~~reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such~~ enter into amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V this Agreement and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.o

Appears in 1 contract

Sources: Credit Agreement (Orion S.A.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrowers may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a) one or more additional tranches of term loans (the “Incremental Term Loans”) or (b)~~ one or more increases in the Revolving Credit Commitments of any Class (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed (i) the Unrestricted Incremental First Lien Amount minus the aggregate principal amount of Incremental Term Loans and Incremental Equivalent Debt (in each case as defined in the Term Loan Credit Agreement) incurred on or prior to the date of the incurrence of any such Incremental Revolving Commitments in reliance on the Unrestricted Incremental Amount (as defined in the Term Loan Credit Agreement) plus (3) the amount of any voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date and voluntary prepayments of other Indebtedness secured on a pari passu basis with the Revolving Credit Loans (excluding (b) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (c) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) (~~each such increase~~this clause ‎(ii), a the “Voluntary Prepayment Amount”) plus (4) unlimited additional Incremental Revolving ~~Commitment Increase”); provided~~Commitments and Incremental Equivalent Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving Pro Forma Effect thereto and after giving effect ~~thereto~~to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Revolving Commitments or Incremental Equivalent Debt, as the case may be), ~~(i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09~~ the First Lien Leverage Ratio for the most recently ended Test Period does not exceed (x) 3.752.05:1.00 or (y) if such Incremental Revolving Commitments are made in connection with a Permitted Acquisition or any other similar Investment not prohibited hereunder, the First Lien Leverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom) immediately prior to the consummation of such Permitted Acquisition or other 114 #95488248v20 (b) [Reserved]. (c) Any Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (i) for ~~which financial statements~~ purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (5) shall have ~~been delivered pursuant~~ interest rate margins and (subject to ~~Section 6.01. Each tranche~~ clauses ‎(iii) and ‎(iv)) amortization schedule as determined by the Borrowers and the lenders thereunder (provided that (A) in the case of ~~Incremental Term Loans and each~~ a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be ~~in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under~~ the ~~limit set forth in~~ same as the ~~next sentence). Notwithstanding anything~~ Maturity Date applicable to the ~~contrary herein~~Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the ~~aggregate amount of~~ final Maturity Date applicable to the ~~Incremental Term Loans~~ Revolving Credit Commitments and the Revolving ~~Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving~~ Credit ~~Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving~~ Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit ~~Facility~~ Commitments and (~~including~~ B) in the case of an Additional Revolving Credit Commitment, the maturity date ~~in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the~~ of such Additional Revolving Credit ~~Facility may~~ Commitment shall be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature no earlier than the Maturity Date ~~with respect~~ applicable to the ~~Term Loans~~Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments)), (c6) any Incremental Revolving Commitments shall not have a ~~shorter~~ final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (7) any Incremental Revolving Commitments shall not have a Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the ~~Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans,~~ Revolving Credit Commitments and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (8) except to the extent otherwise permitted by ~~clauses (a) through (e) above)~~this ‎Section 2.14, ~~they~~ shall be have the same terms and conditions as the Revolving Credit Commitments or such terms as are reasonably satisfactory to the Administrative ~~Agent (~~Agent, it being understood ~~to the extent~~ that ~~any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase,~~ no consent shall be required from the Administrative Agent ~~or any Lender~~ for terms and conditions that are more restrictive than the Revolving Credit Commitments to the extent that ~~such financial maintenance covenant is also~~ they apply to periods after the then Latest Maturity Date with respect to the Revolving Credit Facility or are otherwise added for the benefit of ~~any corresponding existing Term Loans) and subject to clauses (b) and (c) above,~~ the ~~amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~Revolving Credit Lenders hereunder. (cd) Each notice from ~~Parent~~ the Borrowers pursuant to this ~~Section~~ ‎Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental ~~Term Loans or~~ Revolving ~~Commitment Increases~~Commitments. ~~Incremental Term Loans may be made~~Any additional bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to extend Incremental Revolving Commitments shall be reasonably satisfactory 115 #95488248v20 (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withhelde) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in ‎Section 4.02 (it being understood that (i) the representations and warranties of each Loan Party set forth in ‎Section 4.02 being true and correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such ~~further conditions as Parent~~ date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date and (9) no Event of Default shall exist, or would result from such issuance of the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ Incremental Revolving Commitment; provided in the case of Incremental Revolving Commitments the proceeds of which will be used to finance a Limited Condition Transaction, (1) governed by the laws of the United States, (X) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender~~ Facility Closing Date shall be ~~obligated~~ the Specified Representations and (Y) ‎Section 4.02(b) shall be limited to ~~provide any Incremental Term Loans~~ Specified Events of Default and (2) governed by laws other than the laws of the United States, only customary “certain funds” conditions for the applicable jurisdiction or ~~Revolving Commitment Increases, unless it so agrees. (d)~~ as required by the terms of the documentation governing such Limited Condition Transaction will be required to be satisfied). Upon each increase in the Revolving Credit Commitments under such Revolving Credit Facility pursuant to this ~~Section~~ ‎Section 2.14, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit under such Revolving Credit Facility and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) under such Revolving Credit Facility will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit ~~Commitment and (b) if~~Commitment. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans are outstanding under ~~the applicable Facility outstanding, such~~ a Revolving Credit ~~Loans shall on or prior to~~ Facility at the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing time any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis.Revolving 116 #95488248v20 (f) ~~The effectiveness~~ Any portion of any Incremental ~~Amendment shall~~ Revolving Commitment incurred other than under the Incremental Incurrence Test may be ~~subject to~~reclassified at any time, as the Parent Borrower may elect from time to time, as incurred under the Incremental Incurrence Test if ~~requested by~~ the ~~Administrative Agent, receipt by~~ Parent Borrower meets the ~~Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on~~ applicable ratio under the ~~Closing Date (conformed as appropriate, including to reflect any~~ Incremental ~~Term Loans provided~~ Incurrence Test at such time on a ~~“certain funds” basis), (ii) reaffirmation agreements and/or such amendments~~ Pro Forma Basis at any time subsequent to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date incurrence of such Incremental ~~Amendment, except to the extent that~~ Revolving Commitment (or would have met such ~~representations and warranties specifically refer to an earlier date~~ratio, in which ~~case they~~ case, such reclassification shall be ~~true and correct in all material respects (or, with respect~~ deemed to ~~representations and warranties modified~~ have automatically occurred if not elected by ~~a materiality or Material Adverse Effect standard, in all respects) as of such earlier date~~the Parent Borrower). ~~(g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~

Appears in 1 contract

Sources: Credit Agreement (Owens & Minor Inc/Va/)

Incremental Credit Extensions. (a) ~~Parent may~~. (a) Subject to Section 2.14(f), (including the priorities applicable to the Priority Payment Obligations), at any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Company or any Subsidiary Guarantor may, by written notice to the Administrative ~~Agent~~ Agents and the Blackstone Representative (whereupon the Administrative ~~Agent~~ Agents shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of any Class of Initial Term Loans or add one or more additional tranches of term loans (any such Initial Term Loans or additional tranche of term loans, the “Incremental Term Loans”) ~~or (b)~~ and/oradd one or more increases in the Revolving Credit Commitments (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loans, the or the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments and, to the extent constituting Priority Payment Obligations, Additional Revolving Credit Commitments, Revolving Credit Commitment Increases and Incremental Revolving Credit Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) the greater of (x) $45121.0 million and (y) 75.0% of LTM EBITDA (such amount, the “Incremental Starter Amount”) plus (ii) (I) the aggregate amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans and any otherany Indebtedness (in the case of such other Indebtedness, to the extent such Indebtedness is (x) secured on a pari passu basis with respect to security with the Obligations, (y) secured on a junior lien basis with the Obligations or (z) unsecured, and solely to the extent it was, in the case of clause (y) or (z), originally incurred pursuant to the Unrestricted Incremental Amount), payments made pursuant to Section 3.06(a) (to the extent such Indebtedness is retired rather than assigned) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (in each case, including pursuant to debt buy-backs made by Holdings or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the principal amount thereof, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) and (II) in the case of an Incremental Facility (~~each such increase~~that is being incurred using the Unrestricted Incremental Amount) that serves to effectively extend the maturity of the Initial Term Loans, ~~a “~~the Revolving ~~Commitment Increase”); provided~~Credit Facility and/or any other Incremental Facility, ~~that upon~~ an amount equal to the ~~effectiveness~~ portion of the Initial Term Loans, the Revolving Credit Facility and/or any other Incremental ~~Amendment referred~~ Facilities to ~~below and at the time that any~~ be replaced with such Incremental ~~Term Loan is made~~ Facility (such amount under this clause (ii), the “Voluntary Prepayment Amount” and, together with the Incremental Starter Amount, the “Incremental Starter Basket,” the “Unrestricted Incremental Amount”) plus (iii) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, after giving pro forma effect thereto and after giving effect ~~thereto~~to any Permitted Investment consummated in connection therewith, any indebtedness repaid with the proceeds thereof and any other acquisition, disposition, debt incurrence, debt retirement and other appropriate pro forma adjustments and all other appropriate pro forma adjustments (but excluding the cash proceeds of any such Incremental Facilities and Permitted Alternative Incremental Facilities Debt and without giving effect to any amount incurred simultaneously under (x) the Unrestricted Incremental Amount, (y) any other fixed dollar incurrence basket or (z) the Revolving Credit Facility) (and, in each case, for the avoidance of doubt, for purposes of calculating the Interest Coverage Ratio, without giving effect to any interest expense attributable to any such Indebtedness in connection therewith), (iA) ~~no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance~~ if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with ~~Section 7.09~~ the Liens securing the Initial Term LoansRevolving Credit Facility, the Consolidated First Lien Secured Leverage Ratio for the most recently ended Test Period does not exceed 5.75:1.00, (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Initial Term LoansRevolving Credit Facility, the Consolidated Total Senior Secured Leverage Ratio for ~~which financial statements have been delivered~~ the most recently ended Test Period does not exceed 6.25:1.00 or (C) if such Incremental Facility is unsecured, the Consolidated Total Leverage Ratio for the most recently ended Test Period does not exceed 6.25:1.00 (this clause (iii), the “Incremental Incurrence Test”); provided that (x) Incremental Facilities may be incurred pursuant to ~~Section 6.01~~this clause (iii) prior to utilization of the Unrestricted Incremental Amount, (y) assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Credit Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness and (z) any Indebtedness originally incurred under the Unrestricted Incremental Amount shall be automatically and immediately (without duplication) reclassified (unless the Company otherwise elects from time to time) as having been incurred under this clause (iii), at any time the Company would be permitted to incur under this clause (iii) the aggregate principal amount of the Indebtedness being so reclassified (for purposes of clarity, with any such reclassification having the effect of increasing the Company’s ability to incur Indebtedness under the Unrestricted Incremental Amount on and after the date of such reclassification by the amount of Indebtedness so re-designated). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities constituting Priority Payment Obligations in the form of Additional Revolving Credit Commitments, Revolving Credit Commitment Increases and Incremental Revolving Credit Commitments) (determined at the time of incurrence) shall not exceed the Initial Revolving Credit Facility Cap. Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1.0 million and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $50 5.0 million ~~(provided~~in case of Incremental Term Loans or $5.0 million in case of Incremental Revolving Credit Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amountabove. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (aother than Refinancing Term Loans) (i) for purposes of mandatory prepayments, shall ~~rank pari passu or junior~~ be treated substantially the same as (and in ~~right of payment and of security with the Revolving Credit Loans and~~ any event no more favorably than) the Term Loans, (bii) shall have interest rate margins (including “MFN” protection), (subject to clauses (iii) and (iv)), amortization schedule and other terms as determined by the Company and the Lenders thereunder (provided that, solely in the case of any Incremental Term Loans that are incurred on or prior to the date that is first twenty four (24) months after the Closing Date, if the Effective Yield of any such Incremental Term Loans that are MFN Qualifying Term Loans exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to such Initial Term Loans shall be adjusted such that the Effective Yield of such Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum, it being understood and agreed that the relative rate differentials in any pricing grid specified in the Applicable Rate shall continue to be maintained (the foregoing, including all qualifications and exceptions thereto, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the applicable Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to such Initial Term Loans), (iii) any Incremental Term Loan shall not ~~mature~~ have a final maturity date earlier than the Maturity Date ~~with respect~~ applicable to the Initial Term Loans, (civ) any Incremental Term Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any prepayments), (v) shall not be guaranteed by any person other than the Loan Parties and, to the extent secured, shall not be secured by any assets other than the Collateral, (vi) for purposes of voluntary and mandatory prepayments, shall, unless less favorable treatment is otherwise agreed by the Lenders providing such Incremental Term Loans, share ratably in (~~d) shall be entitled~~ or, if junior in right of payment or as to ~~share in mandatory and voluntary prepayments~~ security, on a ~~ratable (or less than ratable, but in no event greater than ratable)~~ junior basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Initial Term Loans) any voluntary and mandatory prepayments of the Initial Term Loans ~~by more than 50 basis points, then the interest rate margins applicable to the Term Loans~~ and (vii) shall ~~be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise~~ be on terms and conditions and pursuant to documentation to be determined ~~by Parent; provided~~ between the Company and the Lenders providing such Incremental Term Loans (provided, that, to the extent such terms and documentation are not consistent with the existing Term Loans (~~except~~ but excluding any terms applicable only after the applicable Maturity Date applicable to the ~~extent permitted by clauses (a) through (e) above~~existing Term Loans), they shall either, at the option of the Company, shall (A) reflect market terms and conditions (taken as a whole) at the time of (subject to Section 1.09(a)) incurrence or effectiveness (as determined by the Company in good faith); provided, that if any terms or conditions of such Incremental Term Loans are less favorable to the Company, taken as a whole, than the terms or conditions of the Term Loans existing on the date of incurrence of such Incremental Term Loans, the Term Loans shall receive the benefit of such terms or conditions through their addition to the Loan Documents, or (B) be reasonably satisfactory to the ~~Administrative Agent~~ Blackstone Representative (it being understood ~~to the extent~~ that ~~any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase,~~ no consent shall be required from the ~~Administrative Agent~~ Blackstone Representative for any terms or ~~any Lender to~~ conditions that are not market terms if the ~~extent that such financial maintenance covenant is also added for~~ Lenders under the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental~~ Term Loans ~~shall be determined by Parent and~~ existing on the ~~lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms~~ date of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making incurrence of such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with receive the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality such terms or ~~Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except~~ conditions through their addition to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier dateLoan Documents)). ~~(g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~

Appears in 1 contract

Sources: Credit Agreement (Shoals Technologies Group, Inc.)

Incremental Credit Extensions. (a) ~~Parent may,~~ The Company may at any time or from time to time after the ~~Closing~~ Amendment No. 3 Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (ax) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term ~~loans~~ loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans”” ) or (by) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of ~~any Facility~~ Revolving Credit Commitments (each such ~~increase~~increase or additional tranche, a an “Incremental Revolving ~~Commitment Increase~~Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”)~~; provided~~, provided that ~~upon~~ (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below ~~and at~~ (including, in the ~~time that~~ case of any ~~such~~ Incremental Term ~~Loan is made (and~~ Loan, after giving effect thereto), ~~(i)~~ no ~~Default or~~ Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall ~~exist~~ have occurred and be continuing, (ii) ~~Parent~~ the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be ~~in Pro Forma Compliance~~ incurred or that shall become effective shall not exceed, together with ~~Section 7.09 for the most recently ended Test Period for which financial statements have been delivered~~ any Indebtedness incurred pursuant to Section ~~6.01~~7.02(y), the Incremental Cap Amount (it being agreed that the Term B-1 Loans shall not be included in the calculation of the usage of the Incremental Cap Amount for purposes of borrowing the Term B-1 Loans on the Amendment No. ~~Each~~ 1 Effective Date or thereafter, for purposes of calculating the usage of clause (c) of the definition of Incremental Cap Amount), (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans ~~and each Revolving Commitment Increase~~ shall be in an aggregate principal amount that is not less than $~~50 million (provided~~50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, ~~that~~ in each case, such amount may be less than ~~$50 million~~ such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the ~~next sentence). Notwithstanding anything~~ Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the ~~contrary herein~~Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the ~~aggregate amount of~~ Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and ~~the Revolving Commitment Increases~~ (~~other than, for the avoidance~~ vii) there shall be not more than two separate tranches of ~~doubt, those established in respect of Extended Term Loans or Extended~~ Revolving Credit Commitments ~~pursuant~~ and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to ~~Section 2.16) shall not exceed~~ the ~~Maximum Incremental Facilities Amount~~Initial Revolving Credit Commitments. (bi) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans ~~(a)~~ shall rank pari passu ~~or junior~~ in right of payment and of security with the Revolving Credit Loans and the Term Loans, ; (bii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date ~~with respect~~ applicable to any Term Loan then outstanding; (iii) the Incremental Term ~~Loans, (c)~~ Loans shall not have a weighted average life to maturity shorter ~~Weighted Average Life to Maturity~~ than the ~~remaining Weighted Average Life~~ weighted average life to ~~Maturity~~ maturity of the existing Term Loans, ; (div) the Incremental Term Loans shall be ~~entitled to share~~ treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments ~~on a ratable (or less than ratable, but in no event greater than ratable) basis with~~ of the existing Term Loans~~, and~~ ; (ev) ~~shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that~~ if the ~~All-In~~ Effective Yield for the Incremental Term Loans ~~that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary~~ as of the ~~Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the~~ date of incurrence of such Incremental Term Loans ~~by more than 50 basis points,~~ exceeds the sum of the Effective Yield then ~~the interest rate margins~~ applicable to the Term B-2 Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Term B-2 Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Term B-2 Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term B-2 Loans shall be increased ~~so that~~ to the extent of such ~~excess shall be only 50 basis points. The~~ differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall ~~otherwise~~ be on substantially the same terms and ~~pursuant to documentation to be determined by Parent; provided that~~conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms ~~and documentation~~ (taken as a whole) are ~~not consistent with~~ more favorable to the lenders providing such Incremental Term Loans ~~(except~~ than those applicable to the ~~extent permitted by clauses (a) through (e) above)~~existing Term Loans, ~~they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is~~ are added for the benefit of ~~any~~ the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent. (c) Incremental ~~Term Loan or~~ Revolving ~~Commitment Increase, no consent~~ Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be ~~required from~~ on the ~~Administrative Agent or~~ same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any ~~Lender~~ existing Revolving Credit Loans or, to the extent ~~that~~ such ~~financial maintenance covenant is also~~ terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of ~~any corresponding~~ the Lenders of the existing ~~Term Loans) and subject~~ Revolving Credit Loans pursuant to ~~clauses (b) and (c) above,~~ an amendment to this Agreement executed by the ~~amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent~~ Company and the ~~lenders thereof~~Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments. (cd) Each notice from ~~Parent~~ the Company pursuant to this Section ~~2.14~~ 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving ~~Commitment Increases~~ Credit Commitments may be provided, by any existing Lender or by any ~~other bank or other financial institution (any such other bank or other financial institution being called an “~~Additional Lender~~”); provided~~, provided that the Administrative ~~Agent~~Agent and, with respect to Incremental Revolving Credit Commitments, each ~~Swing Line~~ Issuing Lender ~~and each L/C Issuer~~ shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving ~~Commitment Increases~~ Credit Commitments if such consent would be required under Section ~~10.06(b)~~ 10.06 for an assignment of Loans or ~~Revolving Credit~~ Commitments, as applicable, to such Lender or Additional Lender~~. Commitments in respect of~~ . (e) The Incremental Term ~~Loans~~ Loan Commitments and Incremental Revolving ~~Commitment Increases~~ Credit Commitments shall become Commitments (or in the case of a an Incremental Revolving Credit Commitment ~~Increase~~ to be provided by an existing Lender with a Revolving Credit ~~Lender~~Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the ~~applicable Borrower~~Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent; it being understood that (i) Amendment No. ~~The~~ 1 constitutes an “Incremental Amendment” with respect to the establishment of the Term B-1 Loan Commitments as “Incremental Term Commitments” and the Term B-1 Loans as “Incremental Term Loans” (subject to the parenthetical in clause (ii) of the proviso to Section 2.24) and (ii) Amendment No. 2 constitutes an “Incremental Amendment” with respect to the establishment of the Incremental Revolving Credit Commitment and the Loans provided thereunder as “Incremental Revolving Credit Loans” (subject to the parenthetical in clause (ii) of the proviso to Section 2.24). (f) Any Incremental Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ 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 Administrative Agent and ~~Parent~~ the Company, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicableSection. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such ~~further~~ other conditions as ~~Parent and~~ the ~~applicable Lenders and Additional Lenders~~ parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving ~~Commitment Increases~~ Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments, unless it ~~so agrees~~affirmatively agrees in its sole discretion. (dg) ~~Upon each increase in~~ To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section ~~2.14~~2.24 consist of increases in the existing Revolving Credit Commitments, (ai) each Lender with a Revolving Credit ~~Lender~~ Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment ~~Increase~~ (each a “Incremental Revolving Credit Commitment ~~Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving Credit Commitment ~~Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such ~~Revolving Credit ▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding ~~(i)~~ participations hereunder in Letters of Credit ~~and (ii) participations hereunder in Swing Line Loans~~ held by each Lender with a Revolving Credit ~~Lender~~ Commitment (including each such Incremental Revolving Credit Commitment ~~Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit ~~Lenders~~ Commitments represented by such ~~Revolving Credit~~ Lender’s Revolving Credit Commitment and (bii) if, on the date of such increase, there are any Revolving Credit Loans ~~under the applicable Facility~~ outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment ~~Increase~~ be prepaid from the proceeds of additional Revolving Credit Loans ~~under the applicable Facility~~ made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any ~~reasonable and documented out-of-pocket~~ costs incurred by any Lender in accordance with Section ~~3.05~~2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (eh) Notwithstanding anything to the contrary in this ~~Section 2.14 or in Article IV or otherwise in this~~ Agreement, ~~so long as no Event of Default has occurred pursuant to~~ this Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 2.24 shall supersede any provisions in ~~Section 2.13~~ Sections 2.18 or 10.01 to the ~~contrary~~contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.

Appears in 1 contract

Sources: Amendment to Credit Agreement (Harsco Corp)

Incremental Credit Extensions. (a) ~~Parent may,~~ The Borrowers may at any time or from time to time after the Closing Date, by notice by the Parent Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a) one or more additional tranches of term loans (the “Incremental Term Loans”) or (b)~~ one or more increases in the amount of the Revolving Credit Commitments ~~of any Facility~~ under either the U.S. Subfacility or the Dutch Subfacility (each such increase, a “Revolving Commitment Increase” or, collectively, “Incremental Facilities”); ~~provided,~~ provided that ~~upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto),~~ (i) ~~no Default or Event~~ any Revolving Commitment Increase for the U.S. Subfacility shall be on the terms (including the Latest Maturity Date of ~~Default shall exist~~ any Class of Commitments under such Subfacility) and pursuant to the documentation applicable to the U.S. Subfacility, (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each any Revolving Commitment Increase for the Dutch Subfacility shall be on the terms (including the Latest Maturity Date of any Class of Commitments under such Subfacility) and pursuant to the documentation applicable to the Dutch Subfacility, (iii) each Incremental Facility shall be in an aggregate principal amount that is not less than $~~50 million~~ 25,000,000 (~~provided,~~ provided that such amount may be less than $~~50 million~~ 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) Facilities shall not exceed $100,000,000 (the ~~Maximum~~ “Incremental ~~Facilities Amount. (b~~Availability”) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (eiv) ~~shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and~~ upon the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit effectiveness of any Incremental ~~Term Loan or Revolving Commitment Increase~~Amendment referred to below, no ~~consent~~ Default shall have occurred and 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) continuing. Each notice from the Parent Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental ~~Term Loans or Revolving Commitment Increases~~Facilities. Incremental ~~Term Loans~~ Facilities may be ~~made, and Revolving Commitment Increases may be provided,~~ provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide a portion of any Incremental Facilities), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”)~~; provided~~, provided that the Administrative ~~Agent, each Swing Line Lender and each L/C Issuer~~ Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s ~~making~~ providing such Incremental ~~Term Loans or providing such Revolving Commitment Increases~~ Facilities if such consent would be required under Section ~~10.06(b~~10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental ~~Term Loans and Revolving Commitment Increases~~ Facilities shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing ~~Revolving Credit~~ Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the ~~applicable Borrower~~Borrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ 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 Administrative Agent and the Parent Borrower, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicableSection. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such ~~further~~ Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as ~~Parent and~~ the ~~applicable Lenders and Additional Lenders~~ parties thereto shall agree. The Borrowers ~~may~~ shall use ~~the proceeds of the~~ Incremental ~~Term Loans and Revolving Commitment Increases~~ Facilities for any purpose not prohibited by this Agreement. ~~No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d)~~ Upon each increase in the Revolving Credit Commitments under any Subfacility pursuant to this Section 2.14, (ax) each ~~Revolving Credit~~ Lender under such Subfacility immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such ~~Revolving Credit ▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans (in case of the Revolving Commitment Increase under the U.S. Subfacility only) under such Subfacility such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each ~~Revolving Credit~~ Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all ~~Revolving Credit~~ Lenders under such Subfacility represented by such ~~Revolving Credit~~ Lender’s Revolving Credit Commitment and (by) if, on the date of such increase, there are any Revolving Credit Loans outstanding under ~~the applicable Facility outstanding~~such Subfacility, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans ~~under the applicable Facility~~ made hereunder (reflecting such increase in Revolving Credit ~~Commitments~~Commitments under such Subfacility), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any ~~reasonable and documented out-of-pocket~~ costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (gb) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (LVB Acquisition, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrowers may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to add one or more additional tranches of term loans (the “Incremental Term Loans”) or ~~(b)~~ one or more increases in the ~~amount of the~~ Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”), provided that at the time of ~~any Facility (~~each such ~~increase, a “Revolving Commitment Increase”); provided, that~~ request and upon the effectiveness of ~~any~~ each Incremental Facility Amendment ~~referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (i)~~ no Default or Event of Default has occurred and is continuing or shall ~~exist~~ result therefrom. Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments), together with the aggregate principal amount of all Permitted First Lien Secured Debt and Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (x) $350,000,000 plus (y) the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder or any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder shall not increase the calculation of the amount under this clause (y)); provided that (i) the Borrowers may incur unlimited additional Incremental Facilities, Permitted First Lien Secured Debt and Permitted Alternative Incremental Facilities Debt so long as, after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Commitments are drawn in full) and after giving effect to any Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments, the First Lien Senior Secured Leverage Ratio shall not exceed 3.25:1.00 (other than to the extent such Incremental Facilities, Permitted First Lien Secured Debt or Permitted Alternative Incremental Facilities Debt is incurred pursuant to this proviso concurrently with the incurrence of Incremental Facilities, Permitted First Lien Secured Debt or Permitted Alternative Incremental Facilities Debt in reliance on clause (x) above, in which case the First Lien Senior Secured Leverage Ratio shall be permitted to exceed 3.25:1.00 to the extent of such Incremental Facilities, Permitted First Lien Secured Debt or Permitted Alternative Incremental Facilities Debt is incurred in reliance on such clause (x)) and (ii) ~~Parent~~ for the avoidance of doubt, Incremental Facilities, Permitted First Lien Secured Debt or Permitted Alternative Incremental Facilities Debt may be incurred pursuant to clause (i) of this proviso prior to utilization of the amount set forth in clause (x) above. Each Incremental Facility shall be in ~~Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche~~ an integral multiple of ~~Incremental Term Loans~~ $1,000,000 and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $~~50 million (provided~~15,000,000 in case of Incremental Term Loans or $15,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in above. Each Incremental Facility shall have the ~~next sentence). Notwithstanding anything to~~ same guarantees as, and be secured by the ~~contrary herein~~same Collateral securing, ~~the aggregate amount~~ all of the ~~Incremental Term Loans and the Revolving Commitment Increases (~~other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities AmountObligations hereunder. (b) Any ~~Revolving Commitment Increase~~ Incremental Term Loans (i) for purposes of prepayments, shall be on treated substantially the same as (and in any event no more favorably than) the Term B Loans and (ii) other than amortization, pricing or maturity date, shall have the same terms ~~and pursuant~~ as the Term B Loans or such terms as are reasonably satisfactory to the ~~same documentation applicable~~ Administrative Agent, provided that (A) except in the case of Refinancing Term Loans, if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing the Term B Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to the ~~Revolving Credit~~ Term B Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% (~~including~~ or 1.00% in the ~~maturity date in respect thereof but excluding up-front commitment or similar fees~~case of Term B-2 Loans)~~; provided~~, the Applicable Rate ~~with respect~~ relating to the ~~Revolving Credit Facility may~~ Term B Loans shall be ~~increased if necessary~~ adjusted to be ~~consistent~~ equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with ~~that required by~~ original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the ~~lenders~~ actual Weighted Average Life to Maturity) payable to all Lenders providing ~~the Revolving Commitment Increase. The~~ such Incremental Term Loans (abut excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) ~~shall rank pari passu~~ relating to such Incremental Term Loans minus 0.50% (or ~~junior~~ 1.00% in ~~right~~ the case of ~~payment and~~ Term B-2 Loans); provided that, in the case of ~~security with~~ this clause (A), (i) if the ~~Revolving Credit~~ Incremental Term Loans ~~and~~ include an interest rate floor greater than the applicable interest rate floor under the Term B Loans, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under the Term B Loans shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (bbut not the Applicable Rate) applicable to the Term B Loans shall be increased to the extent of such differential between interest rate floors and (ii) in the case of Permitted First Lien Secured Debt that bears interest at a fixed rate, for purposes of Section 7.01(ee), such Permitted First Lien Secured Debt shall be swapped to a floating rate on a customary matched maturity basis as is reasonably acceptable to the Administrative Agent, and such swapped rate shall be used to make the calculations set forth in this clause (A), (B) any Incremental Term Loan shall not ~~mature~~ have a final maturity date earlier than the Maturity Date ~~with respect~~ applicable to the Term ~~Loans,~~ B-1 Loans and (cC) any Incremental Term Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the then-remaining Term B-1 Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Any Incremental Revolving Commitment shall be on terms (other than pricing) and pursuant to the documentation applicable to the applicable Revolving Credit Commitments; provided that except in the case of Refinancing Revolving Commitments, if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing such Incremental Revolving Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Revolving Commitments exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing the Revolving Credit Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to the Revolving Credit Commitments immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate relating to the Revolving Credit Commitments shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing such Incremental Revolving Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Incremental Revolving Commitments minus 0.50%; provided that, in the case of this clause (A), if the Incremental Revolving Commitments include an interest rate floor greater than the applicable interest rate floor under the Revolving Credit Commitments, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under the Revolving Credit Commitments shall be required, but only to the extent an increase in the interest rate floor in the Revolving Credit Commitments would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to the Revolving Credit Commitments shall be increased to the extent of such differential between interest rate floors. (d) Each notice from ~~Parent~~ the Borrowers pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Commitments shall be ~~made~~reasonably satisfactory to the Borrowers and the Administrative Agent (any such bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Parent and Topco (prior to a Trigger Event), Holdings, the ~~applicable Borrower~~Borrowers, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in Additional Lenders with respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such ~~further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the~~ Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement~~Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Commitments, unless it so agrees. . Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (deach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) the Incremental Closing Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section 4.02(a) to the extent the proceeds of the Incremental Facility are being used to finance a Permitted Acquisition). The proceeds of any Incremental Term Loans will be used only for general corporate purposes (including Permitted Acquisitions). Upon each increase in the Revolving Credit Commitments of any Class pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (each a “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender of such Class (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders of such Class represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Acelity L.P. Inc.)

Appears in 1 contract

Sources: Credit Agreement (National CineMedia, Inc.)

Appears in 1 contract

Sources: Credit Agreement (Restaurant Brands International Inc.)

Incremental Credit Extensions. (a) ~~Parent may,~~ The Company may at any time or from time to time after the ~~Closing~~ Amendment No. 35 Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (ax) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term ~~loans~~ loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans”” ) or (by) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of ~~any Facility~~ Revolving Credit Commitments (each such ~~increase~~increase or additional tranche, a an “Incremental Revolving ~~Commitment Increase~~Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”)~~; provided~~, provided that ~~upon~~ (i) both at the time of any such requestimmediately prior to and after giving effect to the effectiveness of any Incremental Amendment referred to below ~~and at~~ (including, in the ~~time that~~ case of any ~~such~~ Incremental Term ~~Loan is made (and~~ Loan, after giving effect thereto), ~~(i)~~ no ~~Default or~~ Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall ~~exist~~ have occurred and be continuing, (ii) ~~Parent~~ the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be ~~in Pro Forma Compliance~~ incurred or that shall become effective shall not exceed, together with ~~Section 7.09 for the most recently ended Test Period for which financial statements have been delivered~~ any Indebtedness incurred pursuant to Section ~~6.01~~7.02(y), the Incremental Cap Amount (it being agreed that the Term B-1 Loans shall not be included in the calculation of the usage of the Incremental Cap Amount for purposes of borrowing the Term B-1 Loans on the Amendment No. ~~Each~~ 1 Effective Date or thereafter, for purposes of calculating the usage of clause (c) of the definition of Incremental Cap Amount), (iii) the representations and warranties in Article 4 (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, the Specified Representations) shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans ~~and each Revolving Commitment Increase~~ shall be in an aggregate principal amount that is not less than $~~50 million (provided~~50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, ~~that~~ in each case, such amount may be less than ~~$50 million~~ such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the ~~next sentence). Notwithstanding anything~~ Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the ~~contrary herein~~Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the ~~aggregate amount of~~ Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and ~~the Revolving Commitment Increases~~ (~~other than, for the avoidance~~ vii) there shall be not more than two separate tranches of ~~doubt, those established in respect of Extended Term Loans or Extended~~ Revolving Credit Commitments ~~pursuant~~ and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to ~~Section 2.16) shall not exceed~~ the ~~Maximum Incremental Facilities Amount~~Initial Revolving Credit Commitments. (bi) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans ~~(a)~~ shall rank pari passu ~~or junior~~ in right of payment and of security with the Revolving Credit Loans and the Term Loans, ; (bii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date ~~with respect~~ applicable to any Term Loan then outstanding; (iii) the Incremental Term ~~Loans, (c)~~ Loans shall not have a weighted average life to maturity shorter ~~Weighted Average Life to Maturity~~ than the ~~remaining Weighted Average Life~~ weighted average life to ~~Maturity~~ maturity of the existing Term Loans, ; (div) the Incremental Term Loans shall be ~~entitled to share~~ treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments ~~on a ratable (or less than ratable, but in no event greater than ratable) basis with~~ of the existing Term Loans~~, and~~ ; (ev) ~~shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that~~ if the ~~All-In~~ Effective Yield for the Incremental Term Loans ~~that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary~~ as of the ~~Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the~~ date of incurrence of such Incremental Term Loans ~~by more than 50 basis points,~~ exceeds the sum of the Effective Yield then ~~the interest rate margins~~ applicable to the Term B-2 Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Term B-2 Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Term B-2 Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term B-2 Loans shall be increased ~~so that~~ to the extent of such ~~excess shall be only 50 basis points. The~~ differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall ~~otherwise~~ be on substantially the same terms and ~~pursuant to documentation to be determined by Parent; provided that~~conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms ~~and documentation~~ (taken as a whole) are ~~not consistent with~~ more favorable to the lenders providing such Incremental Term Loans ~~(except~~ than those applicable to the ~~extent permitted by clauses (a) through (e) above)~~existing Term Loans, ~~they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is~~ are added for the benefit of ~~any~~ the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent. (c) Incremental ~~Term Loan or~~ Revolving ~~Commitment Increase, no consent~~ Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be ~~required from~~ on the ~~Administrative Agent or~~ same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any ~~Lender~~ existing Revolving Credit Loans or, to the extent ~~that~~ such ~~financial maintenance covenant is also~~ terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of ~~any corresponding~~ the Lenders of the existing ~~Term Loans) and subject~~ Revolving Credit Loans pursuant to ~~clauses (b) and (c) above,~~ an amendment to this Agreement executed by the ~~amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent~~ Company and the ~~lenders thereof~~Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments. (cd) Each notice from ~~Parent~~ the Company pursuant to this Section ~~2.14~~ 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving ~~Commitment Increases~~ Credit Commitments may be provided, by any existing Lender or by any ~~other bank or other financial institution (any such other bank or other financial institution being called an “~~Additional Lender~~”); provided~~, provided that the Administrative ~~Agent~~Agent and, with respect to Incremental Revolving Credit Commitments, each ~~Swing Line~~ Issuing Lender ~~and each L/C Issuer~~ shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving ~~Commitment Increases~~ Credit Commitments if such consent would be required under Section ~~10.06(b)~~ 10.06 for an assignment of Loans or ~~Revolving Credit~~ Commitments, as applicable, to such Lender or Additional Lender~~. Commitments in respect of~~ . (e) The Incremental Term ~~Loans~~ Loan Commitments and Incremental Revolving ~~Commitment Increases~~ Credit Commitments shall become Commitments (or in the case of a an Incremental Revolving Credit Commitment ~~Increase~~ to be provided by an existing Lender with a Revolving Credit ~~Lender~~Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the ~~applicable Borrower~~Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent; it being understood that (i) Amendment No. ~~The~~ 1 constitutes an “Incremental ~~Amendment shall, without~~ Amendment” with respect to the ~~consent~~ establishment of the ~~Agents or the Lenders, effect such amendments to this Agreement~~ Term B-1 Loan Commitments as “Incremental Term Commitments” and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term B-1 Loans as “~~Lenders”, and the~~ Incremental Term ~~Loans as “~~Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be (subject to ~~such further conditions as Parent and~~ the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds~~ parenthetical in clause (ii) of the ~~Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated~~ proviso to ~~provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this~~ Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”2.24), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) ~~participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal~~ Amendment No. 2 constitutes an “Incremental Amendment” with respect to the ~~percentage~~ establishment of the ~~aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s~~ Incremental Revolving Credit Commitment and ~~(b) if, on~~ the ~~date of such increase, there are any~~ Loans provided thereunder as “Incremental Revolving Credit ~~Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior~~ Loans” (subject to the ~~effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase~~ parenthetical in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), clause (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the ~~applicable Loan Documents and (iii) subject~~ proviso to Section ~~2.14(e~~2.24), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. ~~(g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~

Appears in 1 contract

Sources: Credit Agreement (Harsco Corp)

Incremental Credit Extensions. (a) ~~Parent may,~~ The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ai) one or more additional tranches of term loans (the “Incremental Term Loans”) or and (bii) subject to the last sentence of this paragraph (a), the establishment of one or more increases in the amount of ~~the~~ Revolving Credit Commitments (which may be established as a separate tranche of ~~any Facility~~ revolving loans with terms as described below) (each such increase, a “Revolving Credit Commitment Increase” and, together with the Incremental Term Loans, the “New Loan Commitments”)~~; provided~~, and the commitments in respect thereof, the “New Loan Commitments”)) by an amount not to exceed the sum of (y) the aggregate principal amount of the New Incremental Loans established in connection with Amendment No. 2 (provided that ~~upon~~ any payments or prepayments in respect thereof shall not increase capacity for future New Loan Commitments hereunder) plus (z) (i) from the Amendment No. 2 Effective Date to and including the Q3 End Date, $50,000,000, of which only $25,000,000 may be provided by lenders who were not Term Loan Lenders (or Affiliates of (or funds, partnerships, accounts, investment vehicles or other entities managed or advised by) Term Loan Lenders or their Affiliates) immediately prior to the effectiveness of ~~any~~ such New Loan Commitments (as modified in the definition thereof set forth in Section 1.1, “Incremental ~~Amendment referred to below~~ Additional Lenders”), and ~~at the time that~~ any such Incremental ~~Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall exist~~ Additional Lenders must be acceptable to the Required Lenders and (ii) ~~Parent shall be in Pro Forma Compliance with Section 7.09 for~~ after the ~~most recently ended Test Period for which financial statements have been delivered~~ Q3 End Date, $50,000,000 (less the principal amount of New Loan Commitments incurred pursuant to ~~Section 6.01~~clause (z)(i)). Notwithstanding the foregoing, other than any Incremental Term Loans, any incremental facilities (including any revolving credit commitments) under this Agreement, including any New Loan Commitments that are Revolving Credit Commitments, shall require the consent of the Majority Term Loan Facility Lenders and the Borrower and its Subsidiaries shall not be permitted to add any incremental facilities under this Agreement other than Incremental Term Loans without such consent of the Majority Term Loan Facility Lenders. (b) Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is a whole multiple of $5,000,000 which is not less than $~~50 million~~ 10,000,000 (~~provided,~~ provided that such amount may be less than $~~50 million~~ 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence)) and there shall be not more than four requests for Incremental Term Loans or Revolving Credit Commitment Increases, in each case, following the Amendment No. ~~Notwithstanding anything~~ 2 Effective Date. (c) With respect to any Revolving Credit Commitment Increase or addition of Incremental Term Loans pursuant to this Section 2.25: (i) subject to clause (e) below (A) no Event of Default would exist after giving effect to such increase and (B) to the ~~contrary herein~~extent required by the lenders providing such Revolving Credit Commitment or Incremental Term Loans, ~~the aggregate amount of~~ all representations and warranties in Section 4 shall be true and correct in all material respects; (ii) the Incremental Term Loans and ~~the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended~~ Revolving Credit ~~Commitments~~ Loans made pursuant ~~to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable~~ to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment ~~Increase. The Incremental Term Loans (a)~~ Increases shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans; (iii) other than with the written consent of the Majority Term Loan Facility Lenders (in their sole discretion), (bA) in the case of any Revolving Credit Commitment Increase, (1) the final maturity shall ~~not mature~~ be no earlier than the Maturity Date then-applicable to the New Incremental Term Loans (or such later date as the lender(s) providing such Revolving Credit Commitment Increase may agree) and (2) no amortization or mandatory commitment reduction prior to the Maturity Date then-applicable to the New Incremental Term Loans shall be required (unless such amortization or mandatory commitment reduction shall be no greater than, or result in a shorter weighted average life to maturity than, the remaining weighted average life to maturity of the then-outstanding New Incremental Term Loans) and (B) in the case of any Incremental Term Loans (other than, in each case, New Incremental Loans), such Incremental Term Loans shall mature no earlier than the Latest Maturity Date and the weighted average life to maturity of such Incremental Term Loans shall be no shorter than the longest remaining weighted average life of the then outstanding Term Loans; (iv) except with respect to All-in Yield as set forth in subclause (vi) below and final maturity and weighted average life to maturity as set forth in subclause (iii) above, any such Incremental Term Loans or Revolving Credit Commitment Increase shall either (i) have the same terms as the Term Loan Facility or Revolving Credit Facility or (ii) have such other terms as may be agreed by the Borrower and the lenders providing such New Loan Commitments; provided, that to the extent such terms are more favorable to the new Lenders, when taken as a whole, than comparable terms then-existing in the Loan Documents (as determined by the Borrower in good faith), such terms may be, in consultation with the Administrative Agent and Borrower, incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin relating to any existing Term Loan Facility to bring such Applicable Margin in line with such then-incurred Incremental Term Loans to achieve fungibility with such then applicable existing Term Loan Facility; (v) to the extent reasonably requested by the Administrative Agent and expressly set forth in the documentation relating to Incremental Term Loans or Revolving Credit Commitment Increase, the Administrative Agent shall have received legal opinions, resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 5.1 or delivered from time to time pursuant to Section 6.10 with respect to the Borrower and each material Subsidiary Guarantor that is organized in a jurisdiction for which counsel to the Administrative Agent advises that such deliveries are reasonably necessary to preserve the Collateral in such jurisdiction (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent); (vi) with respect to any Incremental Term Loans (but not New Incremental Loans) or, other than with the written consent of the Majority Term Loan Facility Lenders (in their sole discretion), Revolving Credit Commitment Increases, in each case that are secured on a basis that is pari passu with the Initial Term Loans and New Incremental Loans (it being understood that such Incremental Term Loans, in each case may not be secured on a basis that is senior to the Initial Term Loans or the New Incremental Loans), the All-in-Yield payable by the Borrower applicable to such Incremental Term Loans or such applicable Revolving Credit Commitment Increase (cas applicable) shall not ~~have a shorter Weighted Average Life to Maturity~~ be higher than the ~~remaining Weighted Average Life~~ corresponding All-in Yield payable by the Borrower with respect to ~~Maturity of~~ (x) the New Incremental Loans and (y) solely if such Incremental Term Loans or such applicable Revolving Credit Commitment Increases (as applicable) are initially provided by any Incremental Additional Lender, the Initial Term Loans, unless the All-in Yield with respect to the New Incremental Loans, and solely if such Incremental Term Loans or such applicable Revolving Credit Commitment Increases (das applicable) ~~shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable~~are initially provided by any Incremental Additional Lender, ~~but in no event greater than ratable) basis with~~ the Initial Term Loans, ~~and~~ is increased (eto the extent necessary) ~~shall bear interest at rates and be entitled~~ to ~~upfront fees~~ the amount necessary so that there is no difference between the All-in Yield with respect to such Incremental Term Loans or applicable Revolving Credit Commitment Increases (as ~~shall be determined by Parent~~ applicable) and the ~~applicable new Lenders~~corresponding All-in Yield of the New Incremental Loans, and solely if such Incremental Term Loans are initially provided by any Incremental Additional Lender, the Initial Term Loans (this proviso, the “MFN Provision”); ~~provided~~provided that, ~~however~~for the avoidance of doubt, ~~that~~ if the All-In in-Yield ~~for~~ with respect to such Incremental Term Loans or applicable Revolving Credit Commitment Increases (as applicable) exceeds the All-in-Yield of some, but not all, applicable tranches or classes of Term Loans then outstanding, only those applicable Term Loans with such lower All-in-Yield shall be provided with such applicable increase (if any); provided further, that for purposes hereof, “initially provided by any Incremental Additional Lender” (or words of similar import) shall not include (or apply) where such loans or commitments are initially provided (or backstopped) by Persons that are ~~incurred under this Section 2.14 on a date~~ not Incremental Additional Lenders without actual knowledge by the Borrower that ~~is prior~~ such loans or commitments would be promptly thereafter assigned to Incremental Additional Lenders; provided further, that, for the avoidance of doubt, the incurrence of the New Incremental Term Loans does not require any such increase with respect to Initial Term Loans; (vii) to the ~~twelve (12) month anniversary of~~ extent required by the Persons providing any Revolving Credit Commitment Increases after the Amendment No. 2 Effective Date, ~~shall exceed the All-In Yield with respect~~ such Revolving Credit Commitment Increases may share pro rata (but not greater than pro rata) to ~~the~~ any Mandatory Prepayments otherwise due and payable to Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereofhereunder. (cd) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ 2.25 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Credit Commitment Increases. Incremental Term Loans may be made, and Revolving Credit Commitment Increases may be provided, by any ~~existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an~~ “Additional Lender”~~); provided~~, provided that the Administrative ~~Agent, each Swing Line Lender and each L/C Issuer~~ Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s ~~making such Incremental Term Loans or~~ providing any such Revolving Credit Commitment Increases if such consent would be required under Section ~~10.06(b)~~ 10.1 for an assignment of Loans or ~~Revolving Credit~~ Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Credit Commitment Increases shall become Commitments (or in the case of a Revolving Credit Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit ~~Commitment~~Commitment (which may be established as a separate tranche)) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ 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 Administrative Agent and ~~Parent~~ the Borrower, to effect the provisions of this Section ~~2.14~~2.25 (including, ~~including without limitation~~ for the avoidance of doubt, to ~~incorporate~~ establish a separate tranche of revolving loans and commitments, which separate tranche may share ratably (but not greater than ratably) in any mandatory prepayments applicable to the ~~applicable lenders in respect of~~ Term Loans). To the extent required by the parties providing such Incremental Term Loans ~~as “Lenders”~~and/or Revolving Credit Commitments, ~~and~~ the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 5.2 and such ~~further~~ other conditions as ~~Parent and~~ the ~~applicable Lenders and Additional Lenders~~ parties thereto shall agree. The ~~Borrowers may~~ Borrower will use the proceeds of the Incremental Term Loans and the Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Credit Commitment Increases, unless it so agrees. (de) ~~Upon~~ If such Revolving Credit Commitment Increase is not established as a separate tranche, then upon each increase in the Revolving Credit Commitments pursuant to this Section ~~2.14~~2.25, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”)) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans ~~under the applicable Facility~~ outstanding, ~~such~~ the Revolving Credit ~~Loans~~ Lenders (including the Additional Lenders) shall ~~on or prior to~~ make such payments as directed by the ~~effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase~~ Administrative Agent in ~~Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ order that the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred~~ are held by ~~any Lender~~ the Revolving Credit Lenders (including Additional Lenders) ratably in accordance with the increased Revolving Credit Commitments (and interest and other payments shall be adjusted accordingly). If such Revolving Credit Commitment Increase is established as a separate tranche, the preceding provisions of this paragraph (e) shall not apply, and as set forth in paragraph (c) of this Section ~~3.05.~~ 2.25, the Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions hereof. (f) In connection with any Limited Condition Transaction and any actions or transactions related thereto, in each case, at the option of the Borrower (the Borrower’s election to exercise such option, an “LCT Election”): (i) when calculating the availability of any basket or ratio in connection with any Incremental Term Loans or Revolving Credit Commitment Increases incurred or established, as applicable, in connection with such Limited Condition Transaction, the date of determination for availability under any such basket or ratio shall be determined at the time the definitive agreement related to such Limited Condition Transaction is entered into (the “LCT Test Date”), in which case, such Limited Condition Transaction will be given pro forma effect, including with respect to the Indebtedness to be incurred in connection therewith, and (ii) the date of determination for whether any such transaction is permitted under this Agreement shall be deemed in all respects to be the LCT Test Date; provided, however, that at the time of funding: (x) there shall be no Event of Default under Section 8(a) or Section 8(f) in existence, and (y) certain customary “specified representations” consistent with “SunGard” conditionality provision must be true and correct in all material respects. (g) The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to ~~the immediately preceding sentence. (e) Notwithstanding anything to the contrary in~~ this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis2.25. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (National CineMedia, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add one or more tranches of term A loans (athe "Incremental Term A Loans") or term B loans (the "Incremental Term B Loans" and, together with the Incremental Term A Loans, the "Incremental Term Loans"), one or more increases in any Class of Term Loans or Incremental Term Loans (the "Incremental Term Loan Increases"), one or more additional revolving credit facility tranches ~~of term loans~~ (the “"Incremental ~~Term Loans”~~Revolving Facilities") or ~~(b)~~ one or more increases in the ~~amount of the~~ Revolving Credit Commitments (the "Incremental Revolving Commitments"; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the "Incremental Facilities"); provided that (i) at the time of ~~any Facility (~~each such ~~increase, a “Revolving Commitment Increase”); provided, that~~ request and upon the effectiveness of ~~any~~ each Incremental ~~Amendment referred to below~~ Facility Amendment, no Default has occurred and ~~at the time~~ is continuing or shall result therefrom and (ii) after giving Pro Forma Effect thereto (assuming that any such Incremental ~~Term Loan is made (~~Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect ~~thereto)~~to any Specified Transaction consummated in connection therewith, the Borrower is in compliance (~~i) no Default or Event of Default shall exist and (ii) Parent shall be in~~ on a Pro Forma ~~Compliance~~ Basis) with ~~Section 7.09 for~~ the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio Financial Covenants as of the end of the most ~~recently ended~~ recent Test Period ~~for which financial statements have been delivered pursuant to Section 6.01. Each tranche~~ (as if the incurrence of such Incremental ~~Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that~~ Facility had occurred on the first day of such ~~amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence~~Test Period). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) ~~Any Revolving Commitment Increase~~ The Incremental Facilities are subject to the following terms and conditions: (i) each Incremental Facility shall ~~be on~~ have the same ~~terms~~ guarantees as, and ~~pursuant to~~ be secured on a pari passu basis by the same ~~documentation applicable~~ Collateral securing, the Obligations hereunder; (ii) no existing Lender will be required to ~~the Revolving Credit~~ participate in any such Incremental Facility without its consent; (~~including~~ iii) no Default would exist after giving effect thereto; (iv) the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The of any such Incremental Term B Loans (aincluding any Refinancing Term Loans) shall ~~rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature~~ be no earlier than the Maturity Date ~~with respect to~~ of the Term ~~Loans, (c) shall not have a shorter~~ B-2 Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B-2 Loans; (v) in the case of Incremental Revolving Commitments, (dA) the maturity date of such Incremental Revolving Commitments shall be ~~entitled~~ the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to ~~share~~ the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility; (vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and ~~voluntary prepayments~~ pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a ~~ratable (or less than ratable, but in no event greater than ratable)~~ pro rata basis with the Revolving Credit Facility; (vii) the interest rate margins, the maturity date of any Incremental Term ~~Loans,~~ A Loans and (esubject to clauses (iv) ~~shall bear interest at rates~~ and ~~be entitled~~ (vi) above, as appropriate) amortization schedule applicable to ~~upfront fees as~~ any Incremental Term Loans or Incremental Revolving Facilities shall be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders~~lenders thereunder; ~~provided, however,~~ provided that if (x) in the ~~All-In Yield~~ event that the total all in interest rate margins for any Incremental ~~Term Loans~~ Revolving Facility (other than Refinancing Revolving Commitments) that ~~are~~ is incurred ~~under this Section 2.14~~ on a or prior to the date that is ~~prior to~~ 18 months after the ~~twelve (12) month anniversary of~~ Closing Date are higher than the ~~Amendment No. 2 Effective Date, shall exceed~~ interest rate margins for the ~~All-In Yield with respect to the Term Loans~~ Revolving Credit Facility by more than (in any case) 50 basis points, then the interest rate margins for the Revolving Credit Facility shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Revolving Facility minus 50 basis points and (y) in the event that the total all in interest rate margins for any Incremental Term B Loans (other than Refinancing Term Loans) that is incurred on or prior to the date that is 18 months after the Second Incremental Amendment Closing Date are higher than the interest rate margins for the Term B-2 Loans by more than (in any case) 50 basis points, then the interest rate margin for the Term B-2 Loans shall be increased to the extent necessary so that such interest rate margin is equal to the interest rate margin for such Incremental Term B Loans minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Term B Loans and the Term B-2 Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B-2 Loans or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any Incremental Term A Loans, Incremental Term B Loans or Incremental Revolving Facility shall be excluded, (B) original issue discount ("OID") and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B-2 Loans or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B-2 Loans or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term B-2 Loans or the Revolving Credit Facility, as applicable, shall be increased ~~so that~~ to the extent of such ~~excess~~ differential between interest rate floors; (viii) any Incremental Term A Loans, for purposes of prepayments, shall be ~~only 50 basis points. The~~ treated substantially the same as (and in any event no more favorably than) the Term B-2 Loans; (ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B-2 Loans; (x) any Incremental Term Loans or any Incremental Revolving Facility shall ~~otherwise~~ be on terms and pursuant to documentation to be ~~determined by Parent~~determined; provided that, to the extent such terms and documentation are not consistent with the Term B-2 Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (aiv), (vi), (vii), (viii) ~~through~~ and (eix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (~~it being understood~~ x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to an Intercreditor Agreement (if applicable) and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the ~~extent~~ period after the Maturity Date of the Term B-2 Loans); provided, however, that ~~any financial maintenance covenant~~ a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and (xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is ~~added for~~ not less than (A) $25,000,000 in the ~~benefit~~ case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving ~~Commitment Increase, no consent shall be required from the Administrative Agent~~ Facilities or ~~any Lender to the extent~~ Incremental Revolving Commitments; provided that such ~~financial maintenance covenant is also added for~~ amount may be less than the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c)~~ applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above~~, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans or Revolving Commitment Increases.~~ Loans, Incremental Term ~~Loans may be made~~Loan Increases, ~~and~~ Incremental Revolving ~~Commitment Increases may be provided~~Facilities and/or Incremental Revolving Commitments. Any additional bank, ~~by any~~ financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “"Additional Lender~~”); provided~~") and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “"Incremental Facility Amendment”") to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Intermediate Parent, the Ultimate Parent, the Borrower, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an "Incremental Facility Closing Date") of each of the conditions set forth in Section 4.02 (it being understood that (i) all references to "the date of such ~~further conditions as Parent~~ Credit Extension" in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date, (ii) the Incremental Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section 4.02(a) and (iii) to the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ extent the proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, the conditions in Section 4.02 may be subject to customary "SunGard" limitations). The proceeds of any Incremental Term Loans and ~~Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any~~ Incremental Term ~~Loans or Revolving Commitment Increases, unless it so agrees.~~ Loan Increases will be used only for general corporate purposes (d) including Permitted Acquisitions). Upon each increase in the ~~Revolving Credit~~ Aggregate Commitments pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (each a “"Incremental Revolving ~~Commitment Increase~~ Lender”)") in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇’s~~ Lender's participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Letters of Credit and (iiB) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05's Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Nexstar Broadcasting Group Inc)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add one or more tranches of term A loans (athe "Incremental Term A Loans") or term B loans (the "Incremental Term B Loans" and, together with the Incremental Term A Loans, the "Incremental Term Loans"), one or more increases in any Class of Term Loans or Incremental Term Loans (the "Incremental Term Loan Increases"), one or more additional revolving credit facility tranches ~~of term loans~~ (the “"Incremental ~~Term Loans”~~Revolving Facilities") or ~~(b)~~ one or more increases in the Revolving Credit Commitments (the "Incremental Revolving Commitments"; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the "Incremental Facilities"); provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, no Default has occurred and is continuing or shall result therefrom, (ii) after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect to any Specified Transaction consummated in connection therewith, the Borrower is in compliance (on a Pro Forma Basis) with the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio Financial Covenants as of the end of the most recent Test Period (as if the incurrence of such Incremental Facility had occurred on the first day of such Test Period) and (iii) the sum of (A) the aggregate principal amount of the Revolving Credit Commitments of any Facility (each such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto)Commitment, (iB) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Mission Revolving Credit Commitment, (C) all Incremental Facilities consisting of Incremental Revolving Commitments and Incremental Term ~~Loans~~ A Loans, and ~~the~~ (D) Mission Incremental Facilities consisting of Mission Incremental Revolving ~~Commitment Increases (other than~~Commitments and Mission Incremental Term A Loans, ~~for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16)~~ shall not exceed ~~the Maximum Incremental Facilities Amount~~$150,000,000.350,000,000. (b) ~~Any Revolving Commitment Increase~~ The Incremental Facilities are subject to the following terms and conditions: (i) each Incremental Facility shall ~~be on~~ have the same ~~terms~~ guarantees as, and ~~pursuant to~~ be secured on a pari passu basis by the same ~~documentation applicable~~ Collateral securing, the Obligations hereunder; (ii) no existing Lender will be required to ~~the Revolving Credit~~ participate in any such Incremental Facility without its consent; (~~including~~ iii) no Default would exist after giving effect thereto; (iv) the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The of any such Incremental Term B Loans (aincluding any Refinancing Term Loans) shall ~~rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature~~ be no earlier than the Maturity Date ~~with respect to~~ of the Term ~~Loans, (c) shall not have a shorter~~ B Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans; (v) in the case of Incremental Revolving Commitments, (dA) the maturity date of such Incremental Revolving Commitments shall be ~~entitled~~ the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to ~~share~~ the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility; (vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and ~~voluntary prepayments~~ pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a ~~ratable (or less than ratable, but in no event greater than ratable)~~ pro rata basis with the Revolving Credit Facility; (vii) the interest rate margins, the maturity date of any Incremental Term ~~Loans,~~ A Loans and (esubject to clauses (iv) ~~shall bear interest at rates~~ and ~~be entitled~~ (vi) above, as appropriate) amortization schedule applicable to ~~upfront fees as~~ any Incremental Term Loans or Incremental Revolving Facilities shall be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders~~lenders thereunder; ~~provided, however,~~ provided that if in the ~~All-In Yield~~ event that the total all in interest rate margins for any Incremental Term B Loans or any Incremental Revolving Facility (in each case, other than Refinancing Term Loans and Refinancing Revolving Commitments) that ~~are~~ is incurred ~~under this Section 2.14~~ on a or prior to the date that is ~~prior to~~ 18 months after the ~~twelve (12) month anniversary of~~ Closing Date are higher than the ~~Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to~~ interest rate margins for the Term B Loans or the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term B Loans or the Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term B Loans, or Incremental Revolving Facility, as the case may be, minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Term B Loans and the Term B Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B Loans or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any Incremental Term A Loans, Incremental Term B Loans or Incremental Revolving Facility shall be excluded, (B) original issue discount ("OID") and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B Loans or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term B Loans or the Revolving Credit Facility, as applicable, shall be increased ~~so that~~ to the extent of such ~~excess~~ differential between interest rate floors; (viii) any Incremental Term A Loans, for purposes of prepayments, shall be ~~only 50 basis points. The~~ treated substantially the same as (and in any event no more favorably than) the Term B Loans; (ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans; (x) any Incremental Term Loans or any Incremental Revolving Facility shall ~~otherwise~~ be on terms and pursuant to documentation to be ~~determined by Parent~~determined; provided that, to the extent such terms and documentation are not consistent with the Term B Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (aiv), (vi), (vii), (viii) ~~through~~ and (eix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (~~it being understood~~ x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to the ~~extent that any~~ Intercreditor Agreement and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance ~~covenant~~ covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term B Loans); provided, however, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and (xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is ~~added for~~ not less than (A) $25,000,000 in the ~~benefit~~ case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving ~~Commitment Increase, no consent shall be required from the Administrative Agent~~ Facilities or ~~any Lender to the extent~~ Incremental Revolving Commitments; provided that such ~~financial maintenance covenant is also added for~~ amount may be less than the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c)~~ applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above~~, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans or Revolving Commitment Increases.~~ Loans, Incremental Term ~~Loans may be made~~Loan Increases, ~~and~~ Incremental Revolving ~~Commitment Increases may be provided~~Facilities and/or Incremental Revolving Commitments. Any additional bank, ~~by any~~ financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “"Additional Lender~~”); provided~~") and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “"Incremental Facility Amendment”") to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Intermediate Parent, the Ultimate Parent, the Borrower, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an "Incremental Facility Closing Date") of each of the conditions set forth in Section 4.02 (it being understood that (i) all references to "the date of such ~~further conditions as Parent~~ Credit Extension" in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date, (ii) the Incremental Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section 4.02(a) and (iii) to the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ extent the proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, the conditions in Section 4.02 may be subject to customary "SunGard" limitations). The proceeds of any Incremental Term Loans and ~~Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any~~ Incremental Term ~~Loans or Revolving Commitment Increases, unless it so agrees.~~ Loan Increases will be used only for general corporate purposes (d) including Permitted Acquisitions). Upon each increase in the ~~Revolving Credit~~ Aggregate Commitments pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (each a “"Incremental Revolving ~~Commitment Increase~~ Lender”)") in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇’s~~ Lender's participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Letters of Credit and (iiB) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05's Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Nexstar Broadcasting Group Inc)

Appears in 1 contract

Sources: Credit Agreement (Utz Brands, Inc.)

Appears in 1 contract

Sources: Credit Agreement (Gray Media, Inc)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to add one or more additional tranches of term loans (the “Incremental Term Loans”) or ~~(b)~~ one or more increases in the ~~amount of the~~ Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”), provided that at the time of ~~any Facility (~~each such ~~increase, a “Revolving Commitment Increase”); provided, that~~ request and upon the effectiveness of ~~any~~ each Incremental Facility Amendment ~~referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (i)~~ no Default or Event of Default has occurred and is continuing or shall ~~exist~~ result therefrom. Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments), together with the aggregate principal amount of all Permitted First Lien Secured Debt, shall not exceed the sum of (iix) ~~Parent~~ $150,000,000 plus (y) the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder or any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder shall not increase the calculation of the amount under this clause (y)); provided that the Borrower may incur unlimited additional Incremental Facilities and Permitted First Lien Secured Debt so long as, after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Commitments are drawn in full) and after giving effect to any Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments, the First Lien Senior Secured Leverage Ratio shall not exceed 3.50:1.00. Each Incremental Facility shall be in ~~Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche~~ an integral multiple of ~~Incremental Term Loans~~ $1,000,000 and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $~~50 million (provided~~5,000,000 in case of Incremental Term Loans or $5,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in above. Each Incremental Facility shall have the ~~next sentence). Notwithstanding anything to~~ same guarantees as, and be secured by the ~~contrary herein~~same Collateral securing, ~~the aggregate amount~~ all of the ~~Incremental Term Loans and the Revolving Commitment Increases (~~other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities AmountObligations hereunder. (b) Any ~~Revolving Commitment Increase~~ Incremental Term Loans (i) for purposes of prepayments, shall be on treated substantially the same as (and in any event no more favorably than) the Term B Loans and (ii) other than amortization, pricing or maturity date, shall have the same terms ~~and pursuant~~ as the Term B Loans or such terms as are reasonably satisfactory to the ~~same documentation applicable~~ Administrative Agent, provided that (A) except in the case of Refinanc ing Term Loans, if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing the Term B Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to the ~~Revolving Credit~~ Term B Loans immediately prior to the effectiveness of the applicable Incremental Facility ~~(including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided~~Amendment by more than 0.50%, the Applicable Rate ~~with respect~~ relating to the ~~Revolving Credit Facility may~~ Term B Loans shall be ~~increased if necessary~~ adjusted to be ~~consistent~~ equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with ~~that required by~~ original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the ~~lenders~~ actual Weighted Average Life to Maturity) payable to all Lenders providing ~~the Revolving Commitment Increase. The~~ such Incremental Term Loans (abut excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) ~~shall rank pari passu or junior~~ relating to such Incremental Term Loans minus 0.50%; provided that, in ~~right~~ the case of ~~payment and of security with~~ this clause (A), (i) if the ~~Revolving Credit~~ Incremental Term Loans ~~and~~ include an interest rate floor greater than the applicable interest rate floor under the Term B Loans, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under the Term B Loans shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (bbut not the Applicable Rate) applicable to the Term B Loans shall be increased to the lesser of (x) the extent of such differential between interest rate floors minus 0.50% (if positive) and (y) the extent by which an increase in the interest rate floor in the Term B Loans would cause an increase in the interest rate then in effect thereunder and (ii) in the case of Permitted First Lien Secured Debt that bears interest at a fixed rate, for purposes of Section 7.01(ee), such Permitted First Lien Secured Debt shall be swapped to a floating rate on a customary matched maturity basis as is reasonably acceptable to the Administrative Agent, and such swapped rate shall be used to make the calculations set forth in this clause (A), (B) any Incremental Term Loan shall not ~~mature~~ have a final maturity date earlier than the Maturity Date ~~with respect~~ applicable to the Term ~~Loans,~~ B Loans and (cC) any Incremental Term Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the then-remaining Term B Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Any Incremental Revolving Commitment shall be on terms (other than pricing) and pursuant to the documentation applicable to the Revolving Credit Commitments; provided that except in the case of Refinancing Revolving Commitments, if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing such Incremental Revolving Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Revolving Commitments exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing the Revolving Credit Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to the Revolving Credit Commitments immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate relating to the Revolving Credit Commitments shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing such Incremental Revolving Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Incremental Revolving Commitments minus 0.50%; provided that, in the case of this clause (A), if the Incremental Revolving Commitments include an interest rate floor greater than the applicable interest rate floor under the Revolving Credit Commitments, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under the Revolving Credit Commitments shall be required, but only to the extent an increase in the interest rate floor in the Revolving Credit Commitments would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to the Revolving Credit Commitments shall be increased to the lesser of (x) the extent of such differential between interest rate floors minus 0.50% (if positive) and (y) the extent by which an increase in the interest rate floor in the Term B Loans would cause an increase in the interest rate then in effect thereunder. (d) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Commitments shall be ~~made~~reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the ~~applicable~~ Borrower, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provided any Incremental Term Loans or Incremental Revolving Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicableSection. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such ~~further conditions as Parent~~ Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) the ~~applicable Lenders and Additional Lenders~~ Incremental Closing Facility Closing Date shall ~~agree. The Borrowers may use~~ be deemed to be the initial Credit Extension for purposes of Section 4.02(a) to the extent the proceeds of the Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement~~Facility are being used to finance a Permitted Acquisitions). ~~No Lender shall be obligated to provide~~ The proceeds of any Incremental Term Loans ~~or Revolving Commitment Increases, unless it so agrees.~~ will be used only for general corporate purposes (d) including Permitted Acquisitions). Upon each increase in the Revolving ~~Credit~~ Commitments pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (each a “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving ~~Credit~~ Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Epicor International Holdings, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, by the Borrowers may, with notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), ~~request~~ add (a1) one or more ~~additional~~ tranches of “term a” loans or “term b” loans or increase the amount of any such loans outstanding at such time (any such loans, the “Incremental Term Loans”) or and/or (b2) one or more increases in the Revolving Credit Commitments of any Class (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed (i) the Unrestricted Incremental Amount, plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans or any other Indebtedness secured on a pari passu basis with the Revolving Credit Facility (and, in the case of any revolving facility, to the extent accompanied by a permanent reduction of the relevant commitment) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Effective Date, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long-term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction) (~~each such increase~~this clause (ii), a the “~~Revolving Commitment Increase~~Voluntary Prepayment Amount”~~); provided~~) plus (iii) unlimited additional Incremental Facilities and Incremental Equivalent Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving Pro Forma Effect thereto and after giving effect ~~thereto~~to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (assuming such Incremental Facilities are fully drawn but excluding the cash proceeds of any such Incremental Facilities or Incremental Equivalent Debt, as the case may be), ~~(i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09~~ the Secured Net Leverage Ratio for the most recently ended Test Period ~~for which financial statements have been delivered~~ does not exceed 3.75:1.00, it being understood and agreed that Incremental Facilities may be incurred pursuant to ~~Section 6.01~~this clause (iii) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Commitments and/or any Incremental Equivalent Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the “Incremental Incurrence Test”), and if there is availability under this Incremental Incurrence Test at the time of the incurrence or establishment of such Incremental Facilities, then the Borrowers will be deemed to have elected to use such availability under the Incremental Incurrence Test first. Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1,000,000 and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $~~50 million (provided~~5,000,000 in case of Incremental Term Loans or $1,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth ~~in the next sentence)~~above. ~~Notwithstanding anything to the contrary herein, the aggregate amount of the~~ Each Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (ai) shall rank pari passu ~~or junior~~ in right of payment and of security with the ~~Revolving Credit Loans and the~~ existing Term Loans, (ii) shall be guaranteed solely by the Guarantors that guarantee the other Obligations hereunder and (iii) will be secured solely by a Lien on the Collateral securing all of the other Obligations hereunder; provided that in the case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the applicable funds and related assets held in Escrow (and the proceeds thereof) until the time of the release from Escrow of such funds. (b) Any Incremental Term Loans (other than Refinancing Term Loans) (i) shall have interest rate margins, fees, tenor and an amortization schedule (subject to clauses (ii), (iii), (iv) and (v) below), optional prepayment, mandatory prepayment or redemption terms and other terms as determined by the Borrowers and the lenders thereunder, (ii) any Incremental Term Loan (other than any such Incremental Term Loan that is a customary “term a” loan provided by commercial banks or that constitutes a Qualifying Bridge Facility) shall not ~~mature~~ have a final maturity date earlier than the Maturity Date applicable to any then-existing Term Loans or the Revolving Credit Facility (but may have a springing maturity date consistent with ~~respect~~ the Revolving Credit Facility and the Initial Term-A Loan Facility), (iii) any Incremental Term Loan that is a customary term “a” loan provided by commercial banks shall not have a final maturity date earlier than the Maturity Date applicable to the Initial Term-A Loans or any other then-existing Term ~~Loans~~Loans or Incremental Term Loans that are customary term “a” loans provided by commercial banks (but may have a springing maturity date consistent with the Revolving Credit Facility and the Initial Term-A Loan Facility), (civ) any Incremental Term Loan (other than any such Incremental Term Loan that is a customary “term a” loan provided by commercial banks or that constitutes a Qualifying Bridge Facility) shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of any then-existing Term Loans or Incremental Term Loans that are not customary term “a” loans provided by commercial banks, (v) any Incremental Term Loan that is a customary term “a” loan provided by commercial banks shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term-A Loans or any other then-existing Term ~~Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (~~Loans or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are ~~incurred under~~ customary term “a” loans provided by commercial banks and (vi) except to the extent otherwise permitted by this Section ~~2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date~~2.14, shall ~~exceed the All~~have substantially equivalent terms and conditions as any then-~~In Yield with respect to the~~ existing Term Loans ~~by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The~~ or Incremental Term Loans ~~shall otherwise be~~ or, if not on substantially equivalent terms and ~~pursuant~~ conditions as any then-existing Term Loans or Incremental Term Loans, on such terms as are either (x) not materially more restrictive to ~~documentation to be~~ the Borrowers (as determined by ~~Parent; provided that~~the Parent Borrower in good faith), to when taken as a whole, than the ~~extent such~~ terms ~~and documentation are not consistent with~~ of the existing Revolving Credit Loans or any then-existing Term Loans or Incremental Term Loans (except for covenants or other provisions applicable only to periods after the ~~extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to~~ final stated maturity of the ~~Administrative Agent (it being understood to~~ Revolving Credit Facility or any Term Loans that are outstanding on the ~~extent that any financial maintenance covenant is~~ effective date of the applicable Incremental Term Loans or which are added for the benefit of ~~any Incremental Term Loan~~ the Lenders) or ~~Revolving Commitment Increase~~(y) reasonably acceptable to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent with respect to terms and conditions that are more restrictive than the Revolving Credit Facility or any ~~Lender to the extent~~ then-existing Term Loans or Incremental Term Loans that ~~such financial maintenance covenant is also~~ are added for the benefit of ~~any corresponding existing Term Loans) and subject to clauses (b) and (c) above,~~ the ~~amortization schedule (if any) applicable~~ Lenders or to the ~~Incremental Term~~ extent that they apply to periods after the then Latest Maturity Date with respect to the Loans ~~shall be determined by Parent and the lenders thereof~~then outstanding. (c) Any Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate margins, fees, tenor and (subject to clauses (iii) and (iv)) an amortization schedule and other terms as determined by the Borrowers and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments (but may have a springing maturity date consistent with the Revolving Credit Facility) and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) any Incremental Revolving Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments (but may have a springing maturity date consistent with the Revolving Credit Facility), (iv) any Incremental Revolving Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments and (v) except to the extent otherwise permitted by this Section 2.14, shall have substantially equivalent terms and conditions as the Revolving Credit Commitments or such terms as are either (x) not materially more restrictive to the Borrowers (as determined by the Parent Borrower in good faith), when taken as a whole, than the terms of the existing Revolving Credit Loans (except for covenants or other provisions applicable only to periods after the final stated maturity of the Revolving Credit Loans that are outstanding on the effective date of the applicable Incremental Revolving Commitments or which are added for the benefit of the Lenders) or (y) reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the Revolving Credit Commitments to the extent that they apply to periods after the then Latest Maturity Date with respect to the Revolving Credit Facility or are otherwise added for the benefit of the Lenders hereunder. (d) Each notice from ~~Parent~~ the Borrowers pursuant to this Section 2.14 shall set forth the ~~requested~~ amount and ~~proposed~~ terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Commitments shall be ~~made~~reasonably satisfactory to the Borrowers (any such bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable Borrower~~Borrowers, such Additional Lender and, in the case of any Incremental Revolving Commitments, each ~~Lender agreeing~~ L/C Issuer (solely to ~~provide~~ the extent the L/C Issuer’s consent would be required under Section 10.07(b) for an assignment of Revolving Credit Commitments) (such ~~Commitment~~consent not to be unreasonably withheld, ~~if any, each Additional Lender, if any~~conditioned or delayed), and notified to the Administrative ~~Agent~~Agent (except as otherwise set forth below). ~~The~~ No Incremental Facility Amendment ~~shall, without~~ shall require the consent of ~~the Agents or the Lenders, effect such amendments to this Agreement~~ any Person other than Borrower and the ~~other Loan Documents as may be necessary or appropriate~~Additional Lenders with respect to such Incremental Facility Amendment and, in the ~~reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect~~ case of Incremental ~~Term Loans as “Lenders”~~Revolving Commitments, ~~and~~ the ~~Incremental Term Loans as “Loans” and/or “Term Loans”~~L/C Issuer (solely to the extent the L/C Issuer’s consent would be required under Section 10.07(b) for an assignment of Revolving Credit Commitments) (such consent not to be unreasonably withheld, ~~for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class~~ conditioned or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreementdelayed). No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrowers, to effect the provisions of this Section 2.14; provided, consent of the Administrative Agent to any Incremental Amendment shall be required (i) in the case of any Incremental Revolving Commitments or (ii) to the extent the terms of an Incremental Amendment would directly and adversely amend or modify the rights or duties, or otherwise materially increase the administrative responsibilities, of the Administrative Agent beyond those of the type already required to perform under the Loan Documents (such consent not to be unreasonably withheld, conditioned or delayed). Any Incremental Facility Amendment shall be pursuant to documentation to be mutually agreed among the Borrowers and the Lenders providing such Incremental Facility. (de) The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to (I) the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) the representations and warranties of each Loan Party set forth in Section 4.02 being true and correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date), (ii) no Event of Default shall exist, or would result from such issuance of the Incremental Facility; provided in the case of Incremental Facilities the proceeds of which will be used to finance a Limited Condition Transaction, (1) governed by the laws of the United States, (X) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (Y) no Specified Event of Default shall have occurred and be continuing or occur as a result thereof after giving effect to such Limited Condition Transaction and the funding of such Incremental Facility and (2) governed by laws other than the laws of the United States, only customary “certain funds” conditions for the applicable jurisdiction or as required by the terms of the documentation governing such Limited Condition Transaction will be required to be satisfied) and (II) subject in all respects to Section 1.09(a), after giving effect to such Incremental Facility and the use of proceeds thereof, compliance with the Financial Covenants, in each case, as in effect on the last day of the most recently ended Test Period on a Pro Forma Basis. The proceeds of any Incremental Term Loans will be used for general corporate purposes (including (without limitation) Permitted Acquisitions) and for any other purpose not prohibited hereunder. Upon each increase in the Revolving Credit Commitments under such Revolving Credit Facility pursuant to this Section 2.14, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.Commitment

Appears in 1 contract

Sources: Credit Agreement (DigitalOcean Holdings, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add one or more tranches of term A loans (athe "Incremental Term A Loans") or term B loans (the "Incremental Term B Loans" and, together with the Incremental Term A Loans, the "Incremental Term Loans"), one or more increases in any Class of Term Loans or Incremental Term Loans (the "Incremental Term Loan Increases"), one or more additional revolving credit facility tranches ~~of term loans~~ (the “"Incremental ~~Term Loans”~~Revolving Facilities") or ~~(b)~~ one or more increases in the Revolving Credit Commitments (the "Incremental Revolving Commitments"; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the "Incremental Facilities"); provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, no Default has occurred and is continuing or shall result therefrom, (ii) after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect to any Specified Transaction consummated in connection therewith, the Nexstar Borrower is in compliance (on a Pro Forma Basis) with the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio Financial Covenants as of the end of the most recent Test Period (as if the incurrence of such Incremental Facility had occurred on the first day of such Test Period) and (iii) the sum of (A) the aggregate principal amount of the Revolving Credit Commitments of any Facility (each such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto)Commitment, (iB) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Nexstar Revolving Credit Commitment, (C) all Incremental Facilities consisting of Incremental Revolving Commitments and Incremental Term ~~Loans~~ A Loans, and ~~the~~ (D) Nexstar Incremental Facilities consisting of Nexstar Incremental Revolving ~~Commitment Increases (other than~~Commitments and Nexstar Incremental Term A Loans, ~~for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16)~~ shall not exceed ~~the Maximum Incremental Facilities Amount~~$150,000,000.350,000,000. (b) ~~Any Revolving Commitment Increase~~ The Incremental Facilities are subject to the following terms and conditions: (i) each Incremental Facility shall ~~be on~~ have the same ~~terms~~ guarantees as, and ~~pursuant to~~ be secured on a pari passu basis by the same ~~documentation applicable~~ Collateral securing, the Obligations hereunder; (ii) no existing Lender will be required to ~~the Revolving Credit~~ participate in any such Incremental Facility without its consent; (~~including~~ iii) no Default would exist after giving effect thereto; (iv) the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The of any such Incremental Term B Loans (aincluding any Refinancing Term Loans) shall ~~rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature~~ be no earlier than the Maturity Date ~~with respect to~~ of the Term ~~Loans, (c) shall not have a shorter~~ B Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans; (v) in the case of Incremental Revolving Commitments, (dA) the maturity date of such Incremental Revolving Commitments shall be ~~entitled~~ the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to ~~share~~ the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility; (vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and ~~voluntary prepayments~~ pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a ~~ratable (or less than ratable, but in no event greater than ratable)~~ pro rata basis with the Revolving Credit Facility; (vii) the interest rate margins, the maturity date of any Incremental Term ~~Loans,~~ A Loans and (esubject to clauses (iv) ~~shall bear interest at rates~~ and ~~be entitled~~ (vi) above, as appropriate) amortization schedule applicable to ~~upfront fees as~~ any Incremental Term Loans or Incremental Revolving Facilities shall be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders~~lenders thereunder; ~~provided, however,~~ provided that if in the ~~All-In Yield~~ event that the total all in interest rate margins for any Incremental Term B Loans or any Incremental Revolving Facility (in each case, other than Refinancing Term Loans and Refinancing Revolving Commitments) that ~~are~~ is incurred ~~under this Section 2.14~~ on a or prior to the date that is ~~prior to~~ 18 months after the ~~twelve (12) month anniversary of~~ Closing Date are higher than the ~~Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to~~ interest rate margins for the Term B Loans or the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term B Loans or the Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term B Loans, or Incremental Revolving Facility, as the case may be, minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Term B Loans and the Term B Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B Loans or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any Incremental Term A Loans, Incremental Term B Loans or Incremental Revolving Facility shall be excluded, (B) original issue discount ("OID") and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B Loans or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term B Loans or the Revolving Credit Facility, as applicable, shall be increased ~~so that~~ to the extent of such ~~excess~~ differential between interest rate floors; (viii) any Incremental Term A Loans, for purposes of prepayments, shall be ~~only 50 basis points. The~~ treated substantially the same as (and in any event no more favorably than) the Term B Loans; (ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans; (x) any Incremental Term Loans or any Incremental Revolving Facility shall ~~otherwise~~ be on terms and pursuant to documentation to be ~~determined by Parent~~determined; provided that, to the extent such terms and documentation are not consistent with the Term B Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (aiv), (vi), (vii), (viii) ~~through~~ and (eix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (~~it being understood~~ x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to the ~~extent that any~~ Intercreditor Agreement and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance ~~covenant~~ covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term B Loans); provided, however, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and (xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is ~~added for~~ not less than (A) $25,000,000 in the ~~benefit~~ case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving ~~Commitment Increase, no consent shall be required from the Administrative Agent~~ Facilities or ~~any Lender to the extent~~ Incremental Revolving Commitments; provided that such ~~financial maintenance covenant is also added for~~ amount may be less than the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c)~~ applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above~~, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans or Revolving Commitment Increases.~~ Loans, Incremental Term ~~Loans may be made~~Loan Increases, ~~and~~ Incremental Revolving ~~Commitment Increases may be provided~~Facilities and/or Incremental Revolving Commitments. Any additional bank, ~~by any~~ financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “"Additional Lender~~”); provided~~") and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “"Incremental Facility Amendment”") to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an "Incremental Facility Closing Date") of each of the conditions set forth in Section 4.02 (it being understood that (i) all references to "the date of such ~~further conditions as Parent~~ Credit Extension" in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date, (ii) the Incremental Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section 4.02(a) and (iii) to the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ extent the proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, the conditions in Section 4.02 may be subject to customary "SunGard" limitations). The proceeds of any Incremental Term Loans and ~~Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any~~ Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase Loan Increases will ~~automatically and without further act~~ be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender used only for general corporate purposes (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit CommitmentsPermitted Acquisitions), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Nexstar Broadcasting Group Inc)

Incremental Credit Extensions. (a) ~~Parent~~ From and after the Escrow Release Date, Borrower may, ~~at any time or~~ by written notice to Agent from time to ~~time after~~ time, request an increase in the ~~Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each~~ principal amount of the ~~Lenders)~~Term B Loans, request ~~(a)~~ one or more additional ~~tranches~~ Classes of term loans (any such Term B Loans or additional tranche of term loans, the “Incremental Term Loans”~~) or (b) one or more increases~~ ), request an increase in the amount of Revolving Credit Commitments (a “Revolving Credit Commitment Increase”) and/or request one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”); provided that the aggregate principal amount of Incremental Facilities Incurred under this Section 2.15 after the Escrow Release Date (and excluding, for the avoidance of doubt, any Revolving Credit Commitments incurred pursuant to the Escrow Release Date Incremental Revolving Amendment), together with the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed the Incremental Facility Cap; provided, further, that the Borrower hereby requests an increase in the amount of Revolving Credit Commitments pursuant to an Incremental Amendment to be effective as of the Escrow Release Date (the “Escrow Release Date Incremental Revolving Amendment”), in an aggregate amount of $400,000,000, with such Revolving Credit Commitments having such terms as are set forth herein with respect to the Revolving Credit Commitments as of the Escrow Funding Date, subject to any Facility (each such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit modifications thereto set forth in the ~~next sentence~~Escrow Release Date Incremental Revolving Amendment as would otherwise be permitted by Section 12.2 (it being understood that, notwithstanding anything in Section 2.15(b) or (c) to the contrary, there shall be no conditions to the effectiveness of such Escrow Release Date Incremental Revolving Amendment other than those set forth in Section 3.2). ~~Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases~~ Any such notice (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit ~~Facility~~ Commitment Increase to be effectuated pursuant to the Escrow Release Date Incremental Revolving Amendment) shall set forth (x) the amount of the Incremental Facilities being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000) and (y) the date on which such Incremental Facilities are requested to become effective (which shall not be less than ten (10) Business Days nor more than sixty (60) days after the date of such notice (or such longer or shorter periods as Agent shall agree)). Borrower may seek Incremental Facilities from existing Lenders or any Additional Lender. (b) Subject to Section 2.15(a), it shall be a condition precedent to the Incurrence of the Incremental Facilities that (i) no Event of Default shall have occurred and be continuing immediately prior to or immediately after the Incurrence of such Incremental Facility; provided that if such Incurrence is in connection with a Permitted Investment, the condition in this clause (i) may be ~~increased if necessary to be consistent with that required~~ waived by the ~~lenders~~ providers of such Incremental Facility (other than an Event of Default under Sections 9.1(a), (g) or (h)), (ii) the representations and warranties set forth in Section 4 and in each other Loan Document shall be true and correct in all material respects on and as of the date the applicable Incremental Facility is established, except to the extent that such representations or warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that if such Incurrence is in connection with a Permitted Investment, the condition in this clause (ii) may be waived by the providers of such Incremental Facility (other than (I) the Specified Escrow Release Date Representations and (II) representations made in the definitive agreement related to such Permitted Investment by or on behalf of the seller as are material to the interests of the providers of the Incremental Facility, but only to the extent that Borrower or its applicable affiliate has the right to terminate its obligations under such definitive agreement or refuse to consummate such Permitted Investment as a result of a breach of such representations in such definitive agreement) and (iii) the terms of such Incremental Facility shall comply with Section 2.15(c). (c) The terms of any Incremental Facility shall be determined by Borrower and the Persons providing the ~~Revolving Commitment Increase. The~~ applicable Incremental Facility (each, an “Incremental Lender”) and set forth in an Incremental Amendment; provided that (i) the final maturity date of any Incremental Term Loans (aother than customary bridge loans) shall ~~rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature~~ be no earlier than the Maturity Date with respect to the Term B Loans, (cii) ~~shall not have a shorter~~ the Weighted Average Life to Maturity of the Incremental Term Loans (other than customary bridge loans) shall be no shorter than the remaining Weighted Average Life to Maturity of the Term ~~Loans~~B Loans (without giving effect to any amortization or prepayments thereof), (diii) ~~shall~~ the Incremental Facilities will rank pari passu or junior in right of payment and with respect to security with the Loans or will be ~~entitled~~ unsecured, (iv) no such Incremental Facility may be guaranteed by any Subsidiary or Parent that is not a Credit Party or secured by any assets other than Collateral, (v) with respect to ~~share~~ any Incremental Term Loans in ~~mandatory and voluntary prepayments~~ the form of term loans secured on a ~~ratable (or less than ratable, but in no event greater than ratable)~~ pari passu basis with the Term B Loans, ~~and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that~~ if the All-In Yield ~~for~~ on any tranche of such Incremental Term Loans ~~that are incurred under this Section 2.14 on a date that is prior to~~ exceeds the ~~twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the~~ initial All-In Yield ~~with respect to~~ for the Term B Loans by more than 50 basis ~~points~~points (the amount of such excess above 50 basis points being referred to herein as the “Term B Loan Yield Differential”), then the ~~interest rate margins~~ Applicable Margin for such Term B Loans shall automatically be increased by the Term B Loan Yield Differential applicable to such Term B Loans effective upon the making of the Incremental Term Loans (and Borrower shall be entitled, without the consent of any other Lender, to increase the All-In Yield on such Term B Loans or make any other changes to such Term B Loans (so long as any such other changes are favorable to the Term B Lenders), in each case as necessary to ensure the Incremental Term Loans are “fungible” with such Term B Loans); provided, that, if any Incremental Term Loans include a Term SOFR or Base Rate floor that is greater than the Term SOFR or Base Rate floor applicable to the Term B Loans, such differential between interest rate floors shall be included in the calculation of Term B Loan Yield Differential, but only to the extent an increase in the Term SOFR or Base Rate floor applicable to the Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Term SOFR and Base Rate floors (but not the Applicable Margin) applicable to the Term B Loans shall be increased ~~so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that,~~ to the extent of such ~~terms and documentation are not consistent with the Term Loans~~ differential between interest rate floors, (~~except to the extent permitted by clauses (a~~vi) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans may share ratably or less than ratably (but not more than ratably) in any mandatory prepayments of Term B Loans hereunder, except for prepayments in connection with a refinancing of such Incremental Term Loans, (vii) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (vi) above and excluding pricing, interest rate floors, discounts, fees, call protections, premiums and optional prepayment or redemption terms), such terms shall not be materially less favorable (when taken as a whole) to Borrower than the terms and conditions of the Term B Loans unless such less favorable terms are (x) not effective until after the Maturity Date of the Term B Loans or (y) are also applied to the Term B Loans and (viii) except as otherwise set forth in this Section 2.15, the terms and provisions of any Incremental Revolving Credit Commitments shall be ~~determined by Parent and~~ either (x) the ~~lenders thereof~~same as those applicable to the Revolving Credit Commitments or (y) reasonably satisfactory to Agent. (cd) ~~Each notice from Parent pursuant~~ In connection with any Incremental Facility, Borrower, Agent and each Incremental Lender shall execute and deliver to Agent an amendment to this ~~Section 2.14~~ Agreement (which may take the form of an amendment and restatement of this Agreement) (an “Incremental Amendment”) and such other documentation as Agent shall ~~set forth~~ reasonably specify to evidence the ~~requested amount and proposed terms of the relevant~~ Incremental Term Loans ~~or Revolving Commitment Increases.~~ and/or Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, ~~to such Lender or Additional~~ of each Incremental Lender. ~~Commitments in respect~~ Agent shall promptly notify each Lender as to the effectiveness of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “each Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. ~~The~~ Any Incremental Amendment ~~shall~~may, without ~~the~~ consent of ~~the Agents or the Lenders~~any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of ~~the Administrative~~ Agent and ~~Parent~~ Borrower, to effect the provisions of this Section ~~2.14~~2.15, including ~~without limitation~~ any amendments necessary to ~~incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and~~ establish the Incremental Term Loans and/or Incremental Revolving Credit Commitments as ~~“Loans”~~ a new Class of Loans and/or ~~“Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility~~Commitments, as applicable~~. The effectiveness of any Incremental Amendment shall~~ , and such other technical amendments as may be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans necessary or ~~Revolving Commitment Increases, unless it so agrees. (d) Upon each increase~~ appropriate in the ~~Revolving Credit Commitments pursuant to~~ reasonable opinion of Agent and Borrower in connection with the establishment of such new Class, in each case on terms consistent with this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence2.15. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section ~~2.14~~ 2.15 shall supersede any ~~provisions~~ provision in Section ~~2.13~~ 2.9 or ~~10.01~~ 12.2 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Forward Air Corp)

Incremental Credit Extensions. (a) ~~Parent may,~~ The Company may at any time or from time to time after the ~~Closing~~ Amendment No. 57 Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (ax) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term ~~loans~~ loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans”” ) or (by) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of ~~any Facility~~ Revolving Credit Commitments (each such ~~increase~~increase or additional tranche, a an “Incremental Revolving ~~Commitment Increase~~Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”)~~; provided~~, provided that ~~upon~~ (i) immediately prior to and after giving effect to the effectiveness of any Incremental Amendment referred to below ~~and at~~ (including, in the ~~time that~~ case of any ~~such~~ Incremental Term ~~Loan is made (and~~ Loan, after giving effect thereto), ~~(i)~~ no ~~Default or~~ Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall ~~exist~~ have occurred and be continuing, (ii) ~~Parent~~ the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be ~~in Pro Forma Compliance~~ incurred or that shall become effective shall not exceed, together with ~~Section 7.09 for the most recently ended Test Period for which financial statements have been delivered~~ any Indebtedness incurred pursuant to Section ~~6.01~~7.02(y), the Incremental Cap Amount (it being agreed that the Term B-1 Loans shall not be included in the calculation of the usage of the Incremental Cap Amount for purposes of borrowing the Term B-1 Loans on the Amendment No. ~~Each~~ 1 Effective Date or thereafter, for purposes of calculating the usage of clause (c) of the definition of Incremental Cap Amount), (iii) the representations and warranties in Article 4 (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, the Specified Representations) shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans ~~and each Revolving Commitment Increase~~ shall be in an aggregate principal amount that is not less than $~~50 million (provided~~50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, ~~that~~ in each case, such amount may be less than ~~$50 million~~ such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the ~~next sentence). Notwithstanding anything~~ Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the BorrowerCompany shall have delivered to the ~~contrary herein~~Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the BorrowerCompany shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the ~~aggregate amount of~~ Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and ~~the Revolving Commitment Increases~~ (~~other than, for the avoidance~~ vii) there shall be not more than two separate tranches of ~~doubt, those established in respect of Extended Term Loans or Extended~~ Revolving Credit Commitments ~~pursuant~~ and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to ~~Section 2.16) shall not exceed~~ the ~~Maximum Incremental Facilities Amount~~Initial Revolving Credit Commitments. (bi) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans ~~(a)~~ shall rank pari passu ~~or junior~~ in right of payment and of security with the Revolving Credit Loans and the Term B-3 Loans, ; (bii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date ~~with respect~~ applicable to any Term B-3 Loan then outstanding; (iii) the Incremental Term ~~Loans, (c)~~ Loans shall not have a weighted average life to maturity shorter ~~Weighted Average Life to Maturity~~ than the ~~remaining Weighted Average Life~~ weighted average life to ~~Maturity~~ maturity of the existingoutstanding Term B-3 Loans, ; (div) the Incremental Term Loans shall be ~~entitled to share~~ treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments ~~on a ratable~~ of the existingoutstanding Term B-3 Loans; (~~or less than ratable, but in no event greater than ratable~~v) ~~basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that~~ if the ~~All-In~~ Effective Yield for theany Incremental Term ~~Loans~~ LoansLoan (other than any Incremental Term Loan that ~~are incurred under this Section 2.14 on a~~ (A) is obtained after the date that is ~~prior to the twelve (12) month anniversary of~~ 12 months after the Amendment No. 2 7 Effective ~~Date, shall exceed~~ Date and/or (B) is incurred in connection with a Permitted Acquisition or similar permitted Investment) as of the ~~All-In Yield with respect to the~~ date of incurrence of such Incremental Term Loans ~~by more than 50 basis points,~~ exceeds the sum of the Effective Yield then ~~the interest rate margins~~ applicable to the Term B-23 Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Term B-23 Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Term B-23 Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term B-23 Loans shall be increased ~~so that~~ to the extent of such ~~excess shall be only 50 basis points. The~~ differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall ~~otherwise~~ be on substantially the same terms and ~~pursuant to documentation to be determined by Parent; provided that~~conditions (taken as a whole) as the existingoutstanding Term B-3 Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existingoutstanding Term B-3 Loans or, to the extent such terms ~~and documentation~~ (taken as a whole) are ~~not consistent with~~ more favorable to the lenders providing such Incremental Term Loans ~~(except~~ than those applicable to the ~~extent permitted by clauses (a) through (e) above)~~existing Term Loans, ~~they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is~~ are added for the benefit of ~~any~~ the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent. (c) Incremental ~~Term Loan or~~ Revolving ~~Commitment Increase, no consent~~ Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be ~~required from~~ on the ~~Administrative Agent or~~ same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any ~~Lender~~ existing Revolving Credit Loans or, to the extent ~~that~~ such ~~financial maintenance covenant is also~~ terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of ~~any corresponding~~ the Lenders of the existing ~~Term Loans) and subject~~ Revolving Credit Loans pursuant to ~~clauses (b) and (c) above,~~ an amendment to this Agreement executed by the ~~amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent~~ Company and the ~~lenders thereof~~Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments. (cd) Each notice from ~~Parent~~ the Company pursuant to this Section ~~2.14~~ 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving ~~Commitment Increases~~ Credit Commitments may be provided, by any existing Lender or by any ~~other bank or other financial institution (any such other bank or other financial institution being called an “~~Additional Lender~~”); provided~~, provided that the Administrative ~~Agent~~Agent and, with respect to Incremental Revolving Credit Commitments, each ~~Swing Line~~ Issuing Lender ~~and each L/C Issuer~~ shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving ~~Commitment Increases~~ Credit Commitments if such consent would be required under Section ~~10.06(b)~~ 10.06 for an assignment of Loans or ~~Revolving Credit~~ Commitments, as applicable, to such Lender or Additional Lender~~. Commitments in respect of~~ . (e) The Incremental Term ~~Loans~~ Loan Commitments and Incremental Revolving ~~Commitment Increases~~ Credit Commitments shall become Commitments (or in the case of a an Incremental Revolving Credit Commitment ~~Increase~~ to be provided by an existing Lender with a Revolving Credit ~~Lender~~Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the ~~applicable Borrower~~Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent; it being understood that (i) Amendment No. ~~The~~ 1 constitutes an “Incremental ~~Amendment shall, without~~ Amendment” with respect to the ~~consent~~ establishment of the ~~Agents or the Lenders, effect such amendments to this Agreement~~ Term B-1 Loan Commitments as “Incremental Term Commitments” and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term B-1 Loans as “~~Lenders”, and the~~ Incremental Term ~~Loans as “~~Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be (subject to ~~such further conditions as Parent and~~ the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds~~ parenthetical in clause (ii) of the ~~Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated~~ proviso to ~~provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this~~ Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”2.24), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) ~~participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal~~ Amendment No. 2 constitutes an “Incremental Amendment” with respect to the ~~percentage~~ establishment of the ~~aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s~~ Incremental Revolving Credit Commitment and ~~(b) if, on~~ the ~~date of such increase, there are any~~ Loans provided thereunder as “Incremental Revolving Credit ~~Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior~~ Loans” (subject to the ~~effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase~~ parenthetical in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), clause (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the ~~applicable Loan Documents and (iii) subject~~ proviso to Section ~~2.14(e~~2.24), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. ~~(g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~

Appears in 1 contract

Sources: Credit Agreement (Harsco Corp)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, by the Borrowers may, with notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), ~~request~~ add (a1) one or more ~~additional~~ tranches of “term a” loans or “term b” loans or increase the amount of any such loans outstanding at such time (any such loans, the “Incremental Term Loans”) or and/or (b2) one or more increases in the Revolving Credit Commitments of any Class (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed (i) the Unrestricted Incremental Amount, plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans or any other Indebtedness secured on a pari passu basis with the Revolving Credit Facility (and, in the case of any revolving facility, to the extent accompanied by a permanent reduction of the relevant commitment) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Effective Date, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long-term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction) (~~each such increase~~this clause (ii), a the “~~Revolving Commitment Increase~~Voluntary Prepayment Amount”~~); provided~~) plus (iii) unlimited additional Incremental Facilities and Incremental Equivalent Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving Pro Forma Effect thereto and after giving effect ~~thereto~~to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (assuming such Incremental Facilities are fully drawn but excluding the cash proceeds of any such Incremental Facilities or Incremental Equivalent Debt, as the case may be), ~~(i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09~~ the Secured Leverage Ratio for the most recently ended Test Period ~~for which financial statements have been delivered~~ does not exceed 3.25:1.00, it being understood and agreed that Incremental Facilities may be incurred pursuant to ~~Section 6.01~~this clause (iii) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Commitments and/or any Incremental Equivalent Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the “Incremental Incurrence Test”), and if there is availability under this Incremental Incurrence Test at the time of the incurrence or establishment of such Incremental Facilities, then the Borrowers will be deemed to have elected to use such availability under the Incremental Incurrence Test first. Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1,000,000 and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $~~50 million (provided~~5,000,000 in case of Incremental Term Loans or $1,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth above. Each Incremental Facility (i) shall, if guaranteed, be guaranteed solely by the Guarantors that guarantee the other Obligations hereunder and (ii) if secured, will be secured solely by a Lien on the Collateral securing all of the other Obligations hereunder; provided that in the ~~next sentence). Notwithstanding anything~~ case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the ~~contrary herein,~~ applicable funds and related assets held in Escrow (and the ~~aggregate amount~~ proceeds thereof) until the time of the ~~Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance~~ release from Escrow of ~~doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount~~such funds. (b) Any ~~Revolving Commitment Increase~~ Incremental Term Loans (other than Refinancing Term Loans) (i) [reserved], (ii) shall ~~be on the same~~ have interest rate margins, fees, tenor and an amortization schedule (subject to clauses (iii) and (iv) below), optional prepayment or redemption terms and ~~pursuant to~~ other terms as determined by the ~~same documentation~~ Borrowers and the lenders thereunder, (iii) any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to any then-existing Term Loans or the Revolving Credit Facility (~~including the~~ but may have a springing maturity date ~~in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be~~ consistent ~~with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security~~ with the Revolving Credit ~~Loans and the Term Loans~~Facility), (biv) ~~shall not mature earlier than the Maturity Date with respect to the~~ any Incremental Term ~~Loans, (c)~~ Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of any then-existing Term Loans or, unless such Incremental Term Loans are customary “term a” loans provided by commercial banks, the Revolving Credit Facility, (v) except to the extent otherwise permitted by this Section 2.14, shall have substantially equivalent terms and conditions as any then-existing Incremental Term Loans or, if not on substantially equivalent terms and conditions as any then-existing Incremental Term Loans, on such terms as are either (dx) ~~shall be entitled~~ not materially more restrictive to ~~share in mandatory and voluntary prepayments on a ratable~~ the Borrowers (~~or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees~~ as ~~shall be~~ determined by the Parent ~~and~~ Borrower in good faith), when taken as a whole, than the ~~applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary~~ terms of the ~~Amendment No. 2 Effective Date, shall exceed the All~~existing Revolving Credit Loans or any then-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The existing Incremental ~~Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the~~ Term Loans (except for covenants or other provisions applicable only to periods after the ~~extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to~~ final stated maturity of the ~~Administrative Agent (it being understood to~~ Revolving Credit Loans that are outstanding on the ~~extent that any financial maintenance covenant is~~ effective date of the applicable Incremental Term Loans or which are added for the benefit of ~~any Incremental Term Loan~~ the Lenders) or ~~Revolving Commitment Increase~~(y) reasonably acceptable to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent with respect to terms and conditions that are more restrictive than the Revolving Credit Facility or any ~~Lender to the extent~~ then-existing Incremental Term Loans that ~~such financial maintenance covenant is also~~ are added for the benefit of ~~any corresponding existing Term Loans) and subject to clauses (b) and (c) above,~~ the ~~amortization schedule (if any) applicable~~ Lenders or to the extent that they apply to periods after the then Latest Maturity Date with respect to the Loans then outstanding; provided, that in the case of any Incremental Term ~~Loans~~ Loan where no Incremental Term Loan otherwise then exists, this Agreement shall be ~~determined by Parent~~ amended to include customary provisions for the addition of such Incremental Term Loan, including but not limited to mandatory prepayment, call protection, discounted voluntary prepayment and permitted debt exchange provisions; provided, that upon establishment of any Incremental Facility, Incremental Equivalent Debt or any Ratio Debt that is in the ~~lenders thereof~~form of term loans that are secured on a pari passu basis with the Revolving Credit Facility, this Agreement may be amended to include customary “most favored nation” pricing protections. (c) Any Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate margins, fees, tenor and (subject to clauses (iii) and (iv)) an amortization schedule and other terms as determined by the Borrowers and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments (but may have a springing maturity date consistent with the Revolving Credit Facility) and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) any Incremental Revolving Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments (but may have a springing maturity date consistent with the Revolving Credit Facility), (iv) any Incremental Revolving Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments and (v) except to the extent otherwise permitted by this Section 2.14, shall have substantially equivalent terms and conditions as the Revolving Credit Commitments or such terms as are either (x) not materially more restrictive to the Borrowers (as determined by the Parent Borrower in good faith), when taken as a whole, than the terms of the existing Revolving Credit Loans (except for covenants or other provisions applicable only to periods after the final stated maturity of the Revolving Credit Loans that are outstanding on the effective date of the applicable Incremental Revolving Commitments or which are added for the benefit of the Lenders) or (y) reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the Revolving Credit Commitments to the extent that they apply to periods after the then Latest Maturity Date with respect to the Revolving Credit Facility or are otherwise added for the benefit of the Lenders hereunder. (d) Each notice from ~~Parent~~ the Borrowers pursuant to this Section 2.14 shall set forth the ~~requested~~ amount and ~~proposed~~ terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Commitments shall be ~~made~~reasonably satisfactory to the Borrowers (any such bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable Borrower~~Borrowers, such Additional Lender and, in the case of any Incremental Revolving Commitments, each ~~Lender agreeing~~ L/C Issuer (solely to ~~provide~~ the extent the L/C Issuer’s consent would be required under Section 10.07(b) for an assignment of Revolving Credit Commitments) (such ~~Commitment~~consent not to be unreasonably withheld, ~~if any, each Additional Lender, if any~~conditioned or delayed), and notified to the Administrative ~~Agent~~Agent (except as otherwise set forth below). ~~The~~ No Incremental Facility Amendment ~~shall, without~~ shall require the consent of ~~the Agents or the Lenders, effect such amendments to this Agreement~~ any Person other than Borrower and the ~~other Loan Documents as may be necessary or appropriate~~Additional Lenders with respect to such Incremental Facility Amendment and, in the ~~reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect~~ case of Incremental ~~Term Loans as “Lenders”~~Revolving Commitments, ~~and~~ the ~~Incremental Term Loans as “Loans” and/or “Term Loans”~~L/C Issuer (solely to the extent the L/C Issuer’s consent would be required under Section 10.07(b) for an assignment of Revolving Credit Commitments) (such consent not to be unreasonably withheld, ~~for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class~~ conditioned or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreementdelayed). No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrowers, to effect the provisions of this Section 2.14; provided, consent of the Administrative Agent to any Incremental Amendment shall be required (i) in the case of any Incremental Revolving Commitments or (ii) to the extent the terms of an Incremental Amendment would directly and adversely amend or modify the rights or duties, or otherwise materially increase the administrative responsibilities, of the Administrative Agent beyond those of the type already required to perform under the Loan Documents (such consent not to be unreasonably withheld, conditioned or delayed). Any Incremental Facility Amendment shall be pursuant to documentation to be mutually agreed among the Borrowers and the Lenders providing such Incremental Facility. (de) The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to (I) the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) the representations and warranties of each Loan Party set forth in Section 4.02 being true and correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date), (ii) no Event of Default shall exist, or would result from such issuance of the Incremental Facility; provided in the case of Incremental Facilities the proceeds of which will be used to finance a Limited Condition Transaction, (1) governed by the laws of the United States, (X) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (Y) no Specified Event of Default shall have occurred and be continuing or occur as a result thereof after giving effect to such Limited Condition Transaction and the funding of such Incremental Facility and (2) governed by laws other than the laws of the United States, only customary “certain funds” conditions for the applicable jurisdiction or as required by the terms of the documentation governing such Limited Condition Transaction will be required to be satisfied) and (II) subject in all respects to Section 1.09(a), after giving effect to such Incremental Facility and the use of proceeds thereof, compliance with Section 7.11 as in effect on the last day of the most recently ended Test Period on a Pro Forma Basis. The proceeds of any Incremental Term Loans will be used for general corporate purposes (including (without limitation) Permitted Acquisitions) and for any other purpose not prohibited hereunder. Upon each increase in the Revolving Credit Commitments under such Revolving Credit Facility pursuant to this Section 2.14, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding ~~(i)~~ participations hereunder in Letters of Credit ~~and (ii) participations hereunder in Swing Line Loans~~ under such Revolving Credit Facility held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) ~~will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by~~ under such Revolving Credit ~~Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable~~ Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.will equal

Appears in 1 contract

Sources: Credit Agreement (Nutanix, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower or any Guarantor may, by notice to the Administrative Agent or the Revolver Agent, as applicable (whereupon the Administrative Agent or the Revolver Agent, as applicable, shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of any Class of Initial Term Loans or add one or more additional tranches of term loans (any such Initial Term Loans or additional tranche of term loans, the “Incremental Term Loans”) ~~or (b)~~ and/or one or more increases in the Revolving Credit Commitments (a “Revolving Credit Commitment Increase”) and/or establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed (i) prior to the Conversion Date, $1,375,000,000 and (ii) after the Conversion Date, the greater of (y) $1,375,000,000 and (z) 50% of LTM EBITDA (such amount in clauses (i) and (ii) the “Unrestricted Incremental Amount”) plus (iii) the amount of any voluntary prepayments, redemptions, repurchases or other retirements of the Term Loans and any other Indebtedness (in the case of such other Indebtedness, to the extent such Indebtedness is (x) secured on a pari passu basis with respect to security with the Secured Obligations, (y) secured on a junior lien basis with the Secured Obligations or (z) unsecured, and so long as it was, in the case of clause (y) or (z), originally incurred under the Unrestricted Incremental Amount), payments made pursuant to Section 3.06(a) and voluntary permanent reductions of revolving commitments secured on a pari passu basis with respect to security with the Secured Obligations, which reductions are effected after the Closing Date (including pursuant to debt buy-backs made by the Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of revolving commitments in connection with a substantially concurrent issuance of new revolving commitments thereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit ~~Commitments of any~~ Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) (~~each such increase~~this clause (iii), a the “~~Revolving Commitment Increase~~Voluntary Prepayment Amount”~~); provided~~) plus (iv) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving pro forma effect thereto and after giving effect ~~thereto~~to any Permitted Investment consummated in connection therewith and all other appropriate pro forma adjustments (but excluding the cash proceeds of any such Incremental Facilities and without giving effect to any amount incurred simultaneously under (x) the Unrestricted Incremental Amount or the Voluntary Prepayment Amount or (y) the Revolving Credit Facility), (iA) ~~no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance~~ if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with ~~Section 7.09~~ the Liens securing the Initial Term Loans, the Consolidated First Lien Secured Leverage Ratio for the most recently ended Test Period does not exceed 1.35:1.00, (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Initial Term Loans, is secured by assets not constituting Collateral or is unsecured, the Consolidated Total Leverage Ratio for ~~which financial statements have been delivered~~ the most recently ended Test Period does not exceed either (1) 4.00:1.00 or (2) with the written consent of the Required Revolving Credit Lenders (and for the avoidance of doubt, without the need for the consent of any other Lender), 4.50:1.00; provided that Incremental Facilities may be incurred pursuant to ~~Section 6.01~~this clause (iv) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Credit Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iv), the “Incremental Incurrence Test”). Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1.0 million and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $50 5.0 million ~~(provided~~in case of Incremental Term Loans or $5.0 million in case of Incremental Revolving Credit Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amountabove. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (aother than Refinancing Term Loans) (i) for purposes of mandatory prepayments, shall ~~rank pari passu or junior~~ be treated substantially the same as (and in ~~right of payment and of security with the Revolving Credit Loans and~~ any event no more favorably than) the Term Loans, (bii) shall have interest rate margins (including “MFN” protection), (subject to clauses (iii) and (iv)), amortization schedule and other terms as determined by the Borrower and the Lenders thereunder (provided that, if the Effective Yield of any Incremental Term Loans that are MFN Qualifying Term Loans exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to such Initial Term Loans shall be adjusted such that the Effective Yield of such Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum, it being understood and agreed that the relative rate differentials in any pricing grid specified in the Applicable Rate shall continue to be maintained (the foregoing, including all qualifications and exceptions thereto, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the applicable Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to such Initial Term Loans), (iii) any Incremental Term Loan shall not ~~mature~~ have a final maturity date earlier than the Maturity Date ~~with respect~~ applicable to the Initial Term Loans, (civ) any Incremental Term Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Initial Term Loans, (dv) shall not be guaranteed by any person other than the Loan Parties and, to the extent secured, shall not be secured by any assets other than the Collateral and (vi) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and conditions and pursuant to documentation to be determined ~~by Parent; provided~~ between the Borrower and the Lenders providing such Incremental Term Loans (provided, that, to the extent any more restrictive term is added for the benefit of any Incremental Term Loans, such ~~terms and documentation are not consistent with the Term Loans~~ term (except to the extent ~~permitted by clauses (a~~only applicable after the Maturity Date of the Initial Term Loans) ~~through (e) above), they~~ shall also be ~~reasonably satisfactory to~~ added for the ~~Administrative Agent~~ benefit of the Term Loans (it being understood that (1) no consent of the Administrative Agent and/or any Lender shall be required in connection with adding such term and (2) to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term ~~Loan or Revolving Commitment Increase~~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~~ all of the Term Loans)); provided that the requirements in clauses (iii) and ~~subject to clauses~~ (iv) of this clause (b) ~~and (c) above, the amortization schedule (if any) applicable~~ shall not apply to ~~the Incremental Term Loans shall be determined by Parent and the lenders thereof~~any Inside Maturity Debt. (c) Any Incremental Revolving Credit Commitments (other than Refinancing Revolving Credit Commitments) (i) for purposes of mandatory prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) any Incremental Revolving Credit Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Credit Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments and (v) shall be on terms and conditions and pursuant to documentation to be determined between the Borrower and the Lenders providing such Incremental Revolving Credit Commitments (it being understood that (1) all other terms applicable to such Incremental Revolving Credit Commitments (other than those specified in clauses (i) through (iv) above) shall not be more restrictive (taken as a whole) than those applicable to the Revolving Credit Facility, except to the extent (a) this Agreement shall be modified to grant the Revolving Credit Facility the benefit of such more restrictive provisions, (b) applicable solely to periods after the Maturity Date in respect of the Revolving Credit Facility in effect at the time of the effectiveness of such Incremental Revolving Credit Commitments or (c) as otherwise agreed by the administrative agent in respect of the Revolving Credit Facility in its reasonable discretion)). (d) Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Credit Commitments shall be ~~made~~reasonably satisfactory to the Borrower and the Administrative Agent (or in the case of Incremental Revolving Credit Commitments, ~~and Revolving Commitment Increases may be~~ the Revolver Agent) (provided, by the applicable Agent’s consent shall only be required if such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed) (any such bank, financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, the applicable Agent and, in the case of any Incremental Revolving Credit Commitments and each L/C Issuer; provided, the applicable Agent’s and/or L/C Issuer’s consent shall only be required if ~~any~~such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed or otherwise pursuant to Section 10.01. For the avoidance of doubt, ~~and the Administrative Agent~~no L/C Issuer is required to act as such for any Additional Revolving Credit Commitments unless they so consent. ~~The~~ No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in Additional Lenders with respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such ~~further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the~~ Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement~~Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments, unless it so agrees. . Commitments in respect of any Incremental Term Loans or Incremental Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the applicable Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Additional Lenders, be subject to the satisfaction on the date thereof (deach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) if the proceeds of such Incremental Facility are to be used, in whole or in part, (1) to finance a Permitted Investment, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and if applicable, customary acquisition agreement representations and (B) no Specified Default shall have occurred and Section 4.02(b) shall not apply or (2) to finance a Limited Condition Transaction, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (B) Section 4.02(b) shall not apply). The proceeds of any Incremental Term Loans will be used only for general corporate purposes (including, without limitation, other Investments not prohibited hereunder and Restricted Payments). Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding ~~(i)~~ participations hereunder in Letters of Credit ~~and (ii) participations hereunder in Swing Line Loans~~ held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s Revolving Credit ~~Commitment and (b) if~~Commitment. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans ~~under~~ are outstanding at the ~~applicable Facility outstanding, such~~ time any Incremental Revolving Credit ~~Loans shall on or prior to~~ Commitments are established, the Revolving Credit Lenders immediately after effectiveness of such ~~Revolving Commitment Increase be prepaid from the proceeds of additional~~ Incremental Revolving Credit ~~Loans under the applicable Facility made hereunder (reflecting~~ Commitments shall purchase and assign at par such ~~increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ amounts of the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative~~ outstanding at such time as the Revolver Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may ~~agree to modify the conditionality with respect to such Incremental Term Loans~~ require such that ~~the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness~~ each Revolving Credit Lender holds its Applicable Percentage of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including all Revolving Credit Loans outstanding immediately after giving effect to ~~reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or~~ all such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.assignments. The

Appears in 1 contract

Sources: Credit Agreement (Frontier Communications Parent, Inc.)

Incremental Credit Extensions. (a) ~~Parent~~ The Borrower Agent may, at any ~~time~~ time, on one or ~~from time~~ more occasions deliver a written request to ~~time after the Closing Date, by notice to the~~ Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~), request~~ ) to (ai) add one or more ~~additional~~ new tranches of term facilities and/or increase the principal amount of the Term Loans, any Incremental Term Loans, any Refinancing Term Loans, any Extended Term Loans or any Replacement Term Loans by requesting new term loans commitments to be added to such Loans (~~the~~ any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) or and/or (bii) add one or more ~~increases~~ new tranches of incremental revolving facilities (each, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $250,000,000 (which amount shall be increased by the principal amount of any voluntary prepayments of any tranche of Term Loans (other than with the proceeds of long-term Indebtedness)), plus (y) in the ~~amount of the Revolving Credit Commitments of any Facility (each such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness~~ case of any Incremental ~~Amendment referred~~ Facility that effectively extends the Maturity Date or any other maturity date with respect to ~~below and at~~ any Class of Loans or commitments hereunder, an amount equal to the ~~time that any~~ prepayment to be made with respect to the Term Loans, Incremental Term Loans, Refinancing Term Loans, Extended Term Loans and/or Replacement Term Loans and/or the permanent commitment reduction to be made with respect to an Incremental Revolving Facility or a Replacement Revolving Facility, in each case to be replaced with such Incremental ~~Term Loan is made~~ Facility, plus (~~and~~ z) an unlimited amount so long as, in the case of this clause (z), after giving effect ~~thereto)~~to such Incremental Facility, (i1) ~~no Default or Event~~ if such Incremental Loans rank pari passu in right of ~~Default shall exist and (ii) Parent shall be in~~ security with the Obligations with respect to the Term Loans, the First Lien Leverage Ratio does not exceed 4.25 to 1.00 on a Pro Forma ~~Compliance with Section 7.09~~ Basis (but, for this purpose, determined without deduction of any Cash proceeds received by either Borrower from the incurrence of such Incremental Facility) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section ~~6.01. Each tranche~~ 5.01 or (2) if such Incremental Loans rank junior in right of security with the Obligations with respect to the Term Loans or are unsecured, the Total Leverage Ratio does not exceed 6.00 to 1.00 on a Pro Forma Basis (but, for this purpose, determined without deduction of any Cash proceeds received by either Borrower from the incurrence of such Incremental Facility) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (it being understood that for purposes of subclauses (1) and (2) of this clause (z) of this Section 2.23(a), any Incremental Revolving Facilities shall be deemed to be fully drawn) (the amounts described in clauses (x), (y) and (z) above, the “Incremental Cap”); provided that (1) Incremental Facilities may be incurred under one or more of clauses (x), (y) and/or (z) above as selected by the Borrower Agent in its sole discretion, and (2) if any Incremental Facilities are to be incurred under both clauses (x) and (z) above in connection with a single transaction or series of related but substantially concurrent transactions, then the maximum amount available of Incremental ~~Term Loans~~ Facilities (or portion of Incremental Facilities) to be incurred under clause (z) shall first be determined by calculating the incurrence under such clause (z) without giving effect to any Incremental Facilities (or portion of any Incremental Facilities) incurred (or to be incurred) under clause (x), and ~~each Revolving Commitment Increase~~ after such maximum amount under clause (z) has been determined, the amount of Incremental Facilities (or portion of Incremental Facilities) incurred (or to be incurred) under clause (x) shall be in determined; provided that: (i) such request shall be for an ~~aggregate principal amount that is~~ Incremental Commitment of not less than $~~50 million~~ 10,000,000, (~~provided~~ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Agent and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower Agent and the lenders providing such Incremental Facility or Incremental Loans; provided that ~~such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth~~ in the ~~next sentence). Notwithstanding anything to the contrary herein, the aggregate amount~~ case of ~~the~~ Incremental ~~Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term~~ Loans or ~~Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum~~ Incremental Facilities ~~Amount. (b) Any Revolving Commitment Increase shall~~ that are secured pari passu in right of payment and with respect to security with the Term Loans, such interest rate will not be on more than 0.50% higher than the ~~same terms and pursuant to the same documentation~~ corresponding interest rate applicable to the ~~Revolving Credit Facility (including~~ existing Term Loans unless the ~~maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate~~ interest rate margin with respect to the ~~Revolving Credit Facility may be increased if necessary~~ existing Term Loans is adjusted to be ~~consistent~~ equal to the interest rate with respect to the relevant Incremental Loans or Incremental Facility, minus, 0.50%; provided, further, that ~~required~~ in determining the applicable interest rate: (w) original issue discount or upfront fees paid by the ~~lenders providing~~ Borrowers in connection with the ~~Revolving Commitment Increase. The~~ Term Loans or such Incremental Facility or Incremental Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Facility or Incremental Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Facility or Incremental Loans shall be excluded and (z) if such Incremental Facility or Incremental Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (v) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (avi) no Incremental Revolving Facility shall have a final maturity date earlier than (or require commitment reductions prior to) the Latest Maturity Date, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall rank pari passu or junior in right of payment and of pari passu or junior with respect to security with the ~~Revolving Credit~~ Term Loans or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (ix) any mandatory prepayment of Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall be made on a pro rata basis with all then existing Term Loans (and all other then existing Incremental Term Loans, ~~(b) shall not mature earlier than the Maturity Date with respect to the~~ Refinancing Term Loans, Extended Term Loans and Replacement Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (cbut not on a greater than pro rata basis), and (x) ~~shall~~ except as otherwise required or permitted in clauses (i) through (ix) above, all other terms of such Incremental Facilities, if not ~~have a shorter Weighted Average Life to Maturity than~~ consistent with the ~~remaining Weighted Average Life to Maturity~~ terms of the Term Loans, ~~(d)~~ shall be ~~entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with~~ as agreed by the ~~Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent~~ Borrower Agent and the ~~applicable new Lenders; provided, however, that if the All-In Yield for~~ lenders providing such Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses Facilities. (b) ~~and (c) above, the amortization schedule (if any) applicable to the~~ Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans Commitments may be ~~made, and Revolving Commitment Increases may be provided,~~ provided by any existing ~~Lender~~ Lender, or by any other ~~bank or other financial institution~~ lender (any such other ~~bank or other financial institution~~ lender being called an “Additional Lender”); ~~provided,~~ provided that the Administrative ~~Agent, each Swing Line Lender and each L/C Issuer~~ Agent shall have consented (such consent not to be unreasonably withheld) to such ~~Lender’s or~~ Additional Lender’s ~~making~~ providing such Incremental ~~Term Loans or providing such Revolving Commitment Increases~~ Commitments if such consent would be required under Section ~~10.06(b~~9.05(b) for an assignment of Loans ~~or Revolving Credit Commitments, as applicable,~~ to such ~~Lender or~~ Additional Lender~~. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by~~ ; provided, further, that any such Additional Lender that is an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Affiliated Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to the provisions of Subsection 9.05(g), mutatis mutandis, to the same extent as if such ~~further conditions as Parent~~ Incremental Commitments and ~~the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds~~ related Obligations had been obtained by such Lender by way of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agreesassignment. (dc) ~~Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit~~ Each Lender ~~immediately prior to such increase will automatically and without further act be deemed to have assigned to each~~ or Additional Lender providing a portion of the ~~Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”),~~ Incremental Commitments shall execute and ~~each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase~~ deliver to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the ~~Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in~~ Borrower Agent all such documentation (including an amendment to this Agreement ~~shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e~~or any other Loan Document) ~~Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long~~ as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be ~~consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt~~ reasonably required by the Administrative Agent ~~of (i) customary legal opinions, board resolutions~~ to evidence and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that effectuate such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of Commitments. On the effective date of such Incremental ~~Amendment~~Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans: (i) upon its request, the Administrative Agent shall have received an opinion of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as reaffirmation agreements, supplements and/or amendments to the Collateral Documents (including, in the case of the Mortgages, mortgage amendments and date down endorsements with respect to the applicable title insurance policies) as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans (iii) the Administrative Agent shall have received a certificate of each Borrower signed by an authorized officer of each Borrower: (A) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (B) except as otherwise agreed by the lenders providing such Incremental Commitments to finance an acquisition, Investment or any repayment or redemption of Indebtedness permitted hereunder, certifying that, before and after giving effect to such Incremental Facility or Incremental Loans, no Event of Default exists or has occurred and is continuing. (e) Any portion of any Incremental Term Loans, Incremental Term Facilities, Incremental Revolving Loans and Incremental Revolving Facilities incurred under this Section 2.23 or Incremental Equivalent Debt incurred under Section 6.01(y), in each case, in reliance on clause (x) or (y) of the Incremental Cap that subsequently meets the criteria of clause (z) of the Incremental Cap may be reclassified, as the Borrower Agent elects from time to time, as if incurred under such clause (z) of the Incremental Cap, if such portion of such Incremental Term Loans, Incremental Term Facilities, Incremental Revolving Loans, Incremental Revolving Facilities or Incremental Equivalent Debt could at such time be incurred under such clause (z); provided, that upon delivery of any financial statements pursuant to Section 5.01(b) or (c) following the initial incurrence of such Incremental Term Loans, Incremental Term Facilities, Incremental Revolving Loans, Incremental Revolving Facilities or Incremental Equivalent Debt, if any such portion of Incremental Term Loans, Incremental Term Facilities, Incremental Revolving Loans, Incremental Revolving Facilities or Incremental Equivalent Debt could, based on any such financial statements, have been incurred under clause (z) of the Incremental Cap, then such portion of such Incremental Term Loans, Incremental Term Facilities, Incremental Revolving Loans, Incremental Revolving Facilities or Incremental Equivalent Debt shall automatically be reclassified as incurred under the applicable provision of clause (z) of the Incremental Cap. (f) To the extent either Borrower elects to implement any Incremental Revolving Facility, then notwithstanding any other provision of this Agreement to the contrary, (i) the Borrowers shall be permitted to modify the terms of this Agreement with the consent of only the Administrative Agent to appropriately incorporate revolving facility mechanics (including those related to payments, prepayments, purchases of participations and reallocation mechanisms and letter of credit and/or swingline subfacilities) and other provisions and commitment schedules relating to revolving facilities generally and (ii) to the extent ~~that~~ any other Incremental Revolving Facility or any Extended Revolving Credit Commitments or Replacement Revolving Facility then exists, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on any such ~~representations~~ revolving facilities (and ~~warranties specifically refer~~ related outstandings), (B) repayments required upon the maturity date of any such revolving facilities and (C) repayments made in connection with a permanent repayment and termination of commitments (subject to ~~an earlier date, in which case they shall be true and correct in all material respects~~ clause (~~or,~~ 3) below)) of Loans with respect to ~~representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as~~ any such revolving facilities after the effective date of such ~~earlier date~~Incremental Revolving Facility shall be made on a pro rata basis with all other revolving facilities, (2) all swingline loans and letters of credit under any such revolving facilities shall be participated on a pro rata basis by all lenders with commitments under such revolving facilities and (3) the permanent repayment of Loans with respect to, and termination of commitments under, any such revolving facilities after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis with all other revolving facilities, except that the Borrowers shall be permitted to permanently repay and terminate commitments of any such revolving facility on a greater than pro rata basis as compared to any other revolving facilities with a later maturity date than such revolving facility. (g) This Section ~~2.14~~ 2.23 shall supersede any provisions in Section ~~2.13~~ 2.18 or ~~10.01~~ 9.02 to the contrary.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Party City Holdco Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of Term Loans or add one or more additional tranches of term loans (any such Term Loans or additional tranche of term loans, the “Incremental Term Loans” or the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans) or (bdetermined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) ~~one or more increases in~~ the Unrestricted Incremental First Lien Amount plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the ~~Revolving Credit Commitments~~ Term Loans effected after the Closing Date (including pursuant to debt buy-backs made by any Parent, the Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof, but excluding (A) any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder and (B) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the ABL Facility or other revolving indebtedness)) (this clause (ii), the “Voluntary Prepayment Amount”) plus (iii) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, after giving Pro Forma Effect thereto and after giving effect to any ~~Facility~~ Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments (~~each such increase, a “Revolving Commitment Increase”); provided, that upon~~ but excluding the ~~effectiveness~~ cash proceeds of ~~any Incremental Amendment referred to below and at the time that~~ any such Incremental Term ~~Loan is made (and after giving effect thereto~~Loans), ~~(i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09~~ the First Lien Senior Secured Leverage Ratio for the most recently ended Test Period ~~for which financial statements have been delivered pursuant~~ shall not exceed 4.00:1.00 (or, to ~~Section 6.01. Each tranche of~~ the extent such Incremental Term Loans are incurred in connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, the First Lien Senior Secured Leverage Ratio for the most recently ended Test Period does not exceed the greater of 4.00:1.00 and ~~each Revolving Commitment Increase~~ the First Lien Senior Secured Leverage Ratio immediately prior to such Permitted Acquisition or permitted Investment) (other than (x) amounts incurred concurrently with the incurrence of Indebtedness incurred in reliance on the Unrestricted Incremental First Lien Amount and/or the Voluntary Prepayment Amount and (y) amounts incurred concurrently or substantially concurrently with the incurrence of Indebtedness pursuant to drawings under the ABL Facility, in which case the First Lien Senior Secured Leverage Ratio may exceed 4.00:1.00, as a result of the incurrence of such amounts, and it being understood that Incremental Facilities may be incurred pursuant to this clause (iii) prior to utilization of the Unrestricted Incremental First Lien Amount and the Voluntary Prepayment Amount) (this clause (iii), the “Incremental Incurrence Test”). Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $~~50 million (provided~~5,000,000, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in above. Each Incremental Facility shall have the ~~next sentence). Notwithstanding anything to~~ same guarantees as, and be secured on a pari passu basis by the ~~contrary herein~~same Collateral securing, ~~the aggregate amount~~ all of the ~~Incremental Term Loans and the Revolving Commitment Increases (~~other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount.Obligations hereunder. -78- #95982248v17 (b) Any ~~Revolving Commitment Increase~~ Incremental Term Loans (other than Refinancing Term Loans) (i) for purposes of prepayments, shall be on treated substantially the same as (and in any event no more favorably than) the Initial Term Loans, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that in the case of any Incremental Term Loans (or, as applicable, Permitted Alternative Incremental Facilities or Indebtedness permitted pursuant to Section 7.03(r)) incurred within one year after the Second Amendment Effective Date, (A) in an aggregate principal amount, together with any Permitted Alternative Incremental Facilities and Indebtedness permitted pursuant to Section 7.03(r), in excess of the greater of (I) $212,500,000 and (II) 100% of Consolidated EBITDA as of the most recent Test Period, (B) scheduled to mature prior to the date that is one (1) year after the Maturity Date applicable to the Initial Term Loans, (C) not incurred to finance a Permitted Acquisition or other similar Investment and (D) not constituting loans under any Qualifying Bridge Facility (any such Term Loans incurred within one year after the Second Amendment Effective Date and meeting the criteria of clauses (A) through (D) and the following proviso, “Qualifying Term Loans”), if the Effective Yield of such Incremental Term Loans incurred after the Closing Date exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to the Initial Term Loans shall be adjusted such that the Effective Yield of the Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum (the foregoing, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to the Initial Term Loans), (iii) other than with respect to any Inside Maturity Debt, any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to the Initial Term Loans, (iv) other than with respect to any Inside Maturity Debt, any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term Loans and (v) except to the extent otherwise permitted by this Section 2.14, shall have the same terms and ~~pursuant to~~ conditions as the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Initial Term Loans (aother than any terms and conditions that (x) ~~shall rank pari passu or junior in right of payment and of security with~~ apply only to periods after the ~~Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the~~ then Latest Maturity Date with respect to the Term Loans, (cy) ~~shall not have a shorter Weighted Average Life to Maturity than~~ are otherwise added for the ~~remaining Weighted Average Life to Maturity~~ benefit of the Term ~~Loans,~~ Lenders hereunder or (dz) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereofAgent). (c) [Reserved]. (d) Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans~~ Loans. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ shall be ~~made~~reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Parents, the Borrower, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, ~~if any, and~~ the Administrative Agent. ~~The~~ No Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees. Term Commitments in respect of any Incremental Term Loans shall become Term Commitments under this Agreement. An Incremental Facility Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14~~, including without limitation to incorporate the applicable lenders in respect of~~ . Any Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to ~~this Section 2.14, (a) each Revolving Credit Lender immediately prior~~ documentation to ~~such increase will automatically and without further act~~ be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05mutually agreed. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.-79- #95982248v17 (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Facility Amendment ~~shall be subject to~~shall, ~~if requested by the Administrative Agent, receipt~~ unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties ~~contained~~ of each Loan Party set forth in ~~Article V~~ Section 4.02 being true and ~~the other Loan Documents~~ correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date) and (orii) subject to Section 1.09, ~~with respect~~ no Default or Event of Default shall exist, or would result from such issuance of the proceeds of such Incremental Facility; provided in the case of Incremental Facilities the proceeds of which will be used to finance a Limited Condition Transaction, (1) the only representations and warranties ~~modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except~~ that will be required to ~~the extent that such representations and warranties specifically refer to an earlier date, in which case they shall~~ be true and correct in all material respects ~~(or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects)~~ as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (2) no Specified Events of Default shall be continuing at the time such ~~earlier date~~Limited Condition Transaction is consummated. The proceeds of any Incremental Term Loans will be used only for general corporate purposes (including (without limitation) Permitted Acquisitions). (gf) ~~This Section 2.14 shall supersede~~ Any portion of any ~~provisions in Section 2.13 or 10.01~~ Incremental Facility incurred other than under the Incremental Incurrence Test may be reclassified at any time, as the Borrower may elect from time to time, as incurred under the Incremental Incurrence Test if the Parents and the Borrower meet the applicable ratio under the Incremental Incurrence Test at such time on a Pro Forma Basis at any time subsequent to the ~~contrary~~incurrence of such Incremental Facility (or would have met such ratio, in which case, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower).

Appears in 1 contract

Sources: Credit Agreement (Utz Brands, Inc.)

Appears in 1 contract

Sources: Credit Agreement

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrowers may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a) one or more additional tranches of term loans (the “Incremental Term Loans”) or (b)~~ one or more increases in the Revolving Credit Commitments of any Class (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed (i) the Unrestricted Incremental First Lien Amount plus (ii) the amount of any voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date and voluntary prepayments of other Indebtedness secured on a pari passu basis with the Revolving Credit Loans (excluding (A) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (B) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) (~~each such increase~~this clause (ii), a the “Voluntary Prepayment Amount”) plus (iii) unlimited additional Incremental Revolving ~~Commitment Increase”); provided~~Commitments and Incremental Equivalent Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving Pro Forma Effect thereto and after giving effect ~~thereto~~to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Revolving Commitments or Incremental Equivalent Debt, as the case may be), ~~(i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09~~ the First Lien Leverage Ratio for the most recently ended Test Period ~~for which financial statements have been delivered~~ does not exceed (x) 3.75:1.00 or (y) if such Incremental Revolving Commitments are made in connection with a Permitted Acquisition or any other similar Investment not prohibited hereunder, the First Lien Leverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom) immediately prior to the consummation of such Permitted Acquisition or other similar Investment and the making of such Incremental Revolving Commitments, it being understood and agreed that Incremental Revolving Commitments may be incurred pursuant to ~~Section 6.01~~this clause (iii) prior to utilization of the Unrestricted Incremental First Lien Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Commitments and/or any Incremental Equivalent Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the “Incremental Incurrence Test”). Each ~~tranche of~~ Incremental ~~Term Loans and each~~ Revolving Commitment ~~Increase~~ shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $~~50 million (provided~~10,000,000, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in above. Each Incremental Revolving Commitment shall be guaranteed by the ~~next sentence). Notwithstanding anything to~~ Guarantors that guarantee the ~~contrary herein,~~ other Obligations hereunder and secured by a Lien on the ~~aggregate amount~~ Collateral securing all of the ~~Incremental Term Loans and the Revolving Commitment Increases (~~other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities AmountObligations hereunder. (b) [Reserved]. (c) Any Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrowers and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit ~~Facility~~ Commitments and (~~including~~ B) in the case of an Additional Revolving Credit Commitment, the maturity date ~~in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the~~ of such Additional Revolving Credit ~~Facility may~~ Commitment shall be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature no earlier than the Maturity Date ~~with respect~~ applicable to the ~~Term Loans~~Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments)), (ciii) any Incremental Revolving Commitments shall not have a ~~shorter~~ final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Commitments shall not have a Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the ~~Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans,~~ Revolving Credit Commitments and (ev) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent otherwise permitted by ~~clauses (a) through (e) above)~~this Section 2.14, ~~they~~ shall be have the same terms and conditions as the Revolving Credit Commitments or such terms as are reasonably satisfactory to the Administrative ~~Agent (~~Agent, it being understood ~~to the extent~~ that ~~any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase,~~ no consent shall be required from the Administrative Agent ~~or any Lender~~ for terms and conditions that are more restrictive than the Revolving Credit Commitments to the extent that ~~such financial maintenance covenant is also~~ they apply to periods after the then Latest Maturity Date with respect to the Revolving Credit Facility or are otherwise added for the benefit of ~~any corresponding existing Term Loans) and subject to clauses (b) and (c) above,~~ the ~~amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~Revolving Credit Lenders hereunder. (cd) Each notice from ~~Parent~~ the Borrowers pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental ~~Term Loans or~~ Revolving ~~Commitment Increases~~Commitments. ~~Incremental Term Loans may be made~~Any additional bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to extend Incremental Revolving Commitments shall be reasonably satisfactory to the Borrowers and the Administrative Agent, the L/C Issuer and Swing Line Lender (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable Borrower~~Parent, ~~each Lender agreeing to provide~~ the Borrowers, such ~~Commitment, if any, each~~ Additional Lender, ~~if any,~~ the Administrative Agent and each L/C Issuer and Swing Line Lender. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment and the ~~Administrative Agent~~L/C Issuer and Swing Line Lender. ~~The~~ No Lender shall be obligated to provide any Incremental Revolving Commitments, unless it so agrees. Commitments in respect of any Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14~~, including without limitation~~ . Any Incremental Facility Amendment shall be pursuant to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and documentation to ~~establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable.~~ be mutually agreed. (e) The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) the representations and warranties of each Loan Party set forth in Section 4.02 being true and correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such ~~further conditions as Parent~~ date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date and (ii) no Event of Default shall exist, or would result from such issuance of the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ Incremental Revolving Commitment; provided in the case of Incremental Revolving Commitments the proceeds of which will be used to finance a Limited Condition Transaction, (1) governed by the laws of the United States, (X) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender~~ Facility Closing Date shall be ~~obligated~~ the Specified Representations and (Y) Section 4.02(b) shall be limited to ~~provide any Incremental Term Loans~~ Specified Events of Default and (2) governed by laws other than the laws of the United States, only customary “certain funds” conditions for the applicable jurisdiction or ~~Revolving Commitment Increases, unless it so agrees. (d)~~ as required by the terms of the documentation governing such Limited Condition Transaction will be required to be satisfied). Upon each increase in the Revolving Credit Commitments under such Revolving Credit Facility pursuant to this Section 2.14, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit under such Revolving Credit Facility and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) under such Revolving Credit Facility will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit ~~Commitment and (b) if~~Commitment. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans are outstanding under a Revolving Credit Facility at the ~~applicable Facility outstanding,~~ time any Incremental Revolving Commitments are established under such Revolving Credit ~~Loans shall on or prior to~~ Facility, the Revolving Credit Lenders immediately after effectiveness of such Incremental Revolving ~~Commitment Increase be prepaid from the proceeds~~ Commitments shall purchase and assign at par such amounts of ~~additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred by any~~ outstanding under such Revolving Credit Facility at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 3.05~~under such Revolving Credit Facility holds its Applicable Percentage of all Revolving Credit Loans outstanding under such Revolving Credit Facility immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) ~~The effectiveness~~ Any portion of any Incremental ~~Amendment shall~~ Revolving Commitment incurred other than under the Incremental Incurrence Test may be ~~subject to~~reclassified at any time, as the Parent may elect from time to time, as incurred under the Incremental Incurrence Test if ~~requested by~~ the ~~Administrative Agent, receipt by~~ Parent meets the ~~Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on~~ applicable ratio under the ~~Closing Date (conformed as appropriate, including to reflect any~~ Incremental ~~Term Loans provided~~ Incurrence Test at such time on a ~~“certain funds” basis), (ii) reaffirmation agreements and/or such amendments~~ Pro Forma Basis at any time subsequent to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date incurrence of such Incremental ~~Amendment, except to the extent that~~ Revolving Commitment (or would have met such ~~representations and warranties specifically refer to an earlier date~~ratio, in which ~~case they~~ case, such reclassification shall be ~~true and correct in all material respects (or, with respect~~ deemed to ~~representations and warranties modified~~ have automatically occurred if not elected by ~~a materiality or Material Adverse Effect standard, in all respects) as of such earlier date~~the Parent). ~~(g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.~~

Appears in 1 contract

Sources: Credit Agreement (Owens & Minor Inc/Va/)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to add one or more additional tranches of term A loans (the “Incremental Term A Loans”) or term B loans (the “Incremental Term B Loans” and, together with the Incremental Term A Loans, loans (the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or ~~(b)~~ one or more increases in the Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “Incremental Facilities”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment no Default or Event of Default has occurred and is continuing or shall result therefrom. Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities incurred after the Amendment No. 3 Effective Date (other than Refinancing Term Loans and Refinancing Revolving Commitments), shall not exceed the greater of (i) the sum of (x) $200,000,000 plus (y) the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Credit Commitments effected after the ClosingAmendment No. 3 Effective Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder or any ~~Facility~~ reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder shall not increase the calculation of the amount under this clause (~~each such increase~~y)) and (ii) an unlimited amount so long as, ~~a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time~~ after giving Pro Forma Effect thereto (assuming that any such Incremental ~~Term Loan is made (~~Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect ~~thereto~~to any Specified Transaction consummated in connection therewith and all other appropriate Pro Forma Adjustments, the First Lien Net Leverage Ratio does not exceed the applicable ratio for such test period set forth below under Section 7.10 (and references therein to “Net Leverage Ratio” shall be deemed to be “First Lien Net Leverage Ratio” for this purpose), . (b) The Incremental Facilities are subject to the following terms and conditions: (i) each Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Obligations hereunder; (ii) no existing Lender will be required to participate in any such Incremental Facility without its consent; (iii) no Default or Event of Default ~~shall~~ would exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount.after giving effect thereto; (biv) ~~Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including~~ the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The of any Incremental Term A Loans ~~(a)~~ shall ~~rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature~~ be no earlier than the Maturity Date ~~with respect to~~ of the Term A-1 Loans, ~~(c) shall not have a shorter~~ and the Weighted Average Life to Maturity of such Incremental Term A Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term A-1 Loans; (v) the maturity date of any such Incremental Term B Loans shall be no earlier than the Maturity Date of the Term B Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans;[reserved]; (vi) in the case of (A) Incremental Revolving Commitments, the maturity date of such Incremental Revolving Commitments shall be the same as the Maturity Date of the Revolving Credit Facility, such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility and the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility and (B) Incremental Term Loan Increases, the maturity date of such Incremental Term Loan Increases shall be the same as the Maturity Date of the applicable Class of Term Loans or Incremental Term Loans, ~~(d)~~ such Incremental Term Loan Increases shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the applicable Class of Term Loans or Incremental Term Loans and such Incremental Term Loan Increases shall be ~~entitled~~ on the exact same terms and pursuant to ~~share~~ the exact same documentation applicable to the applicable Class of Term Loans or Incremental Term Loans; (vii) in the case of an Incremental Revolving Facility, the maturity date of such Incremental Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, the Incremental Revolving Facility shall be on substantially the same terms and ~~voluntary prepayments~~ pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and borrowings and repayments under the Incremental Revolving Facility shall be made on a ~~ratable (or less than ratable, but in no event greater than ratable)~~ pro rata basis with the ~~Term Loans,~~ Revolving Credit Facility; (viii) the interest rate margins and (esubject to clauses (iv), (v) ~~shall bear interest at rates~~ and ~~be entitled~~ (vii), as appropriate) amortization schedule applicable to ~~upfront fees as~~ any Incremental Term Loans or Incremental Revolving Facilities shall be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders~~lenders thereunder; ~~provided, however,~~ provided that if in the ~~All-In Yield~~ event that the interest rate margins for any Incremental Term A Loans, any (other than Incremental Term B Loans,Loans ~~that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary~~ which do not have an annual amortization greater than 1% of the ~~Amendment No. 2 Effective Date~~original aggregate principal amount of such Incremental Term Loans) or any Incremental Revolving Facility (in each case, ~~shall exceed~~ other than Refinancing Term Loans and Refinancing Revolving Commitments) are higher than the ~~All-In Yield with respect to~~ interest rate margins for the Term A Loans, Term B-1 Loans or the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term A Loans, Term B-1 Loans or Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term A Loans, Incremental Term B Loans or Incremental Revolving Facility, as the case may be, minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Term A Loans and the Term A Loans, the Incremental Term B Loans and the Term B-1 Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (x) customary arrangement or commitment fees payable to the Lead Arrangers (or their affiliates) in connection with the Term A Loans, Term B-1 Loans or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any Incremental Term A Loans, Incremental Term B Loans or Incremental Revolving Facility shall be excluded, (y) original issue discount (“OID”) and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (z) if the Incremental Term A Loans, Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term A Loans, Term B-1 Loans or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term A Loans, Term B-1 Loans or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term A Loans, Term B-1 Loans or the Revolving Credit Facility, as applicable, shall be increased ~~so that~~ to the extent of such ~~excess~~ differential between interest rate floors; (ix) any Incremental Term A Loans, for purposes of prepayments, shall be ~~only 50 basis points. The~~ treated substantially the same as (or no more favorably than) the Term A-1 Loans; (x) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (or no more favorably than) the Term B Loans;[reserved]; (xi) any Incremental Term Loans or any Incremental Revolving Facility shall ~~otherwise~~ be on terms and pursuant to documentation to be ~~determined by Parent~~determined; provided that, to the extent such terms and documentation are not consistent with the Term A Loans, the Term B-1 Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by ~~clauses~~ clause (~~a) through~~ iv), (ev), (vii), (viii), (ix), or (x) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (~~it being understood~~ xi), (A) the terms and conditions of such Refinancing Term Loans and Refinancing Revolving Commitments (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence and (B) such Refinancing Term Loans or Refinancing Revolving Commitments shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the ~~extent~~ period after the Maturity Date of the Term B Loans); provided, however, that ~~any financial maintenance covenant~~ a certificate of a Responsible Officer delivered to the Administrative Agent at least five (5) Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and (xii) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is ~~added for~~ not less than $50,000,000 in the ~~benefit~~ case of any Incremental Term Loans or Incremental Term Loan Increases or $25,000,000 in the case of any Incremental Revolving ~~Commitment Increase, no consent shall be required from the Administrative Agent~~ Facilities or ~~any Lender to the extent~~ Incremental Revolving Commitments; provided that such ~~financial maintenance covenant is also added for~~ amount may be less than the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c)~~ applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above~~, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans or Revolving Commitment Increases.~~ Loans, Incremental Term ~~Loans may be made~~Loan Increases, ~~and~~ Incremental Revolving ~~Commitment Increases may be provided~~Facilities and/or Incremental Revolving Commitments. Any additional bank, ~~by any~~ financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to provide the applicable Incremental Facility shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such ~~further conditions as Parent~~ Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) the ~~applicable Lenders~~ Incremental Closing Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section 4.02(a) and ~~Additional Lenders shall agree. The Borrowers may use~~ (z) to the extent the proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, the conditions in Section 4.02 may be subject to customary “SunGard” limitations (or, for an acquisition of a foreign entity, “certain funds” limitations)). The proceeds of any Incremental Term Loans and ~~Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any~~ Incremental Term ~~Loans or Revolving Commitment Increases, unless it so agrees.~~ Loan Increases will be used only for general corporate purposes (d) including Permitted Acquisitions). Upon each increase in the Revolving ~~Credit~~ Commitments pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment ~~Increase~~ (each a “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Corporate Executive Board Co)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add one or more tranches of term A loans (athe "Incremental Term A Loans") or term B loans (the "Incremental Term B Loans" and, together with the Incremental Term A Loans, the "Incremental Term Loans"), one or more increases in any Class of Term Loans or Incremental Term Loans (the "Incremental Term Loan Increases"), one or more additional revolving credit facility tranches ~~of term loans~~ (the “"Incremental ~~Term Loans”~~Revolving Facilities") or ~~(b)~~ one or more increases in the ~~amount of the~~ Revolving Credit Commitments (the "Incremental Revolving Commitments"; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the "Incremental Facilities"); provided that (i) at the time of ~~any Facility (~~each such ~~increase, a “Revolving Commitment Increase”); provided, that~~ request and upon the effectiveness of ~~any~~ each Incremental ~~Amendment referred to below~~ Facility Amendment, no Default has occurred and ~~at the time~~ is continuing or shall result therefrom and (ii) after giving Pro Forma Effect thereto (assuming that any such Incremental ~~Term Loan is made (~~Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect ~~thereto)~~to any Specified Transaction consummated in connection therewith, the Nexstar Borrower is in compliance (~~i) no Default or Event of Default shall exist and (ii) Parent shall be in~~ on a Pro Forma ~~Compliance~~ Basis) with ~~Section 7.09 for~~ the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio Financial Covenants as of the end of the most ~~recently ended~~ recent Test Period ~~for which financial statements have been delivered pursuant to Section 6.01. Each tranche~~ (as if the incurrence of such Incremental ~~Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that~~ Facility had occurred on the first day of such ~~amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence~~Test Period). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) ~~Any Revolving Commitment Increase~~ The Incremental Facilities are subject to the following terms and conditions: (i) each Incremental Facility shall ~~be on~~ have the same ~~terms~~ guarantees as, and ~~pursuant to~~ be secured on a pari passu basis by the same ~~documentation applicable~~ Collateral securing, the Obligations hereunder; (ii) no existing Lender will be required to ~~the Revolving Credit~~ participate in any such Incremental Facility without its consent; (~~including~~ iii) no Default would exist after giving effect thereto; (iv) the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The of any such Incremental Term B Loans (aincluding any Refinancing Term Loans) shall ~~rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature~~ be no earlier than the Maturity Date ~~with respect to~~ of the Term ~~Loans, (c) shall not have a shorter~~ B-2 Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B-2 Loans; (v) in the case of Incremental Revolving Commitments, (dA) the maturity date of such Incremental Revolving Commitments shall be ~~entitled~~ the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to ~~share~~ the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility; (vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and ~~voluntary prepayments~~ pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a ~~ratable (or less than ratable, but in no event greater than ratable)~~ pro rata basis with the Revolving Credit Facility; (vii) the interest rate margins, the maturity date of any Incremental Term ~~Loans,~~ A Loans and (esubject to clauses (iv) ~~shall bear interest at rates~~ and ~~be entitled~~ (vi) above, as appropriate) amortization schedule applicable to ~~upfront fees as~~ any Incremental Term Loans or Incremental Revolving Facilities shall be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders~~lenders thereunder; ~~provided, however,~~ provided that if (x) in the ~~All-In Yield~~ event that the total all in interest rate margins for any Incremental ~~Term Loans~~ Revolving Facility (other than Refinancing Revolving Commitments) that ~~are~~ is incurred ~~under this Section 2.14~~ on a or prior to the date that is ~~prior to~~ 18 months after the ~~twelve (12) month anniversary of~~ Closing Date are higher than the ~~Amendment No. 2 Effective Date, shall exceed~~ interest rate margins for the ~~All-In Yield with respect to the Term Loans~~ Revolving Credit Facility by more than (in any case) 50 basis points, then the interest rate margins for the Revolving Credit Facility shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Revolving Facility minus 50 basis points and (y) in the event that the total all in interest rate margins for any Incremental Term B Loans (other than Refinancing Term Loans) that is incurred on or prior to the date that is 18 months after the Second Incremental Amendment Closing Date are higher than the interest rate margins for the Term B-2 Loans by more than (in any case) 50 basis points, then the interest rate margin for the Term B-2 Loans shall be increased to the extent necessary so that such interest rate margin is equal to the interest rate margin for such Incremental Term B Loans minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Term B Loans and the Term B-2 Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B-2 Loans, or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any Incremental Term A Loans, Incremental Term B Loans or Incremental Revolving Facility shall be excluded, (B) original issue discount ("OID") and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B-2 Loans, or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B-2 Loans, or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term ~~Loans~~ B-2 Loans, or the Revolving Credit Facility, as applicable, shall be increased ~~so that~~ to the extent of such ~~excess~~ differential between interest rate floors; (viii) any Incremental Term A Loans, for purposes of prepayments, shall be ~~only 50 basis points. The~~ treated substantially the same as (and in any event no more favorably than) the Term B-2 Loans; (ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B-2 Loans; (x) any Incremental Term Loans or any Incremental Revolving Facility shall ~~otherwise~~ be on terms and pursuant to documentation to be ~~determined by Parent~~determined; provided that, to the extent such terms and documentation are not consistent with the Term B-2 Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (aiv), (vi), (vii), (viii) ~~through~~ and (eix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (~~it being understood~~ x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to an Intercreditor Agreement (if applicable) and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the ~~extent~~ period after the Maturity Date of the Term B-2 Loans); provided, however, that ~~any financial maintenance covenant~~ a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and (xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is ~~added for~~ not less than (A) $25,000,000 in the ~~benefit~~ case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving ~~Commitment Increase, no consent shall be required from the Administrative Agent~~ Facilities or ~~any Lender to the extent~~ Incremental Revolving Commitments; provided that such ~~financial maintenance covenant is also added for~~ amount may be less than the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c)~~ applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above~~, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof~~. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans or Revolving Commitment Increases.~~ Loans, Incremental Term ~~Loans may be made~~Loan Increases, ~~and~~ Incremental Revolving ~~Commitment Increases may be provided~~Facilities and/or Incremental Revolving Commitments. Any additional bank, ~~by any~~ financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “"Additional Lender~~”); provided~~") and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “"Incremental Facility Amendment”") to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an "Incremental Facility Closing Date") of each of the conditions set forth in Section 4.02 (it being understood that (i) all references to "the date of such ~~further conditions as Parent~~ Credit Extension" in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date, (ii) the Incremental Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section 4.02(a) and (iii) to the ~~applicable Lenders and Additional Lenders shall agree. The Borrowers may use~~ extent the proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, the conditions in Section 4.02 may be subject to customary "SunGard" limitations). The proceeds of any Incremental Term Loans and ~~Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any~~ Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase Loan Increases will ~~automatically and without further act~~ be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender used only for general corporate purposes (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit CommitmentsPermitted Acquisitions), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Nexstar Broadcasting Group Inc)

Incremental Credit Extensions. ~~(a) Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrowers may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a1) to increase the amount of Tranche A Term Loans or add one or more additional tranches of “term a” loans (any such Tranche A Term Loans, or additional tranche of “term a” loans, the “Incremental Term A Loans”), (2) to increase the amount of Tranche B Term Loans or add one or more additional tranches of “term b” loans (any such Tranche B Term Loans, or additional tranche of “term b” loans, the “Incremental Term B Loans” and together with the Incremental Term A Loans, collectively, the “Incremental Term Loans”~~) or~~ ), and/or (b3) one or more increases in the Revolving Credit Commitments of any Class (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed (i) the Unrestricted Incremental Amount, plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans or any other Indebtedness secured on a pari passu basis with the Initial Tranche A Term Loans, the Tranche B-1 Term Loans and the Second Amendment Incremental Term B Loans (and, in the case of any revolving facility, to the extent accompanied by a permanent reduction of the relevant commitment) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Acquisition Closing Date (including pursuant to debt buy-backs made by the Parent Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in cash in respect thereof), but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction) (~~each such increase~~this clause (ii), a the “~~Revolving Commitment Increase~~Voluntary Prepayment Amount”~~); provided~~) plus (iii) unlimited additional Incremental Facilities and Incremental Equivalent Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving Pro Forma Effect thereto and after giving effect ~~thereto~~to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Facilities or Incremental Equivalent Debt, as the case may be), (iA) ~~no Default or Event of Default shall exist~~ if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with the Liens securing the Initial Tranche A Term Loans, the Tranche B-1 Term Loans and ~~(ii) Parent shall be in Pro Forma Compliance with Section 7.09~~ the Second Amendment Incremental Term B Loans, the First Lien Leverage Ratio for the most recently ended Test Period does not exceed 3.66:1.00 (or, to the extent such Incremental Facility is incurred in connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, the First Lien Leverage Ratio for ~~which financial statements have been delivered pursuant~~ the most recently ended Test Period does not exceed the greater of 3.66:1.00 and the First Lien Leverage Ratio immediately prior to ~~Section 6.01. Each tranche of~~ such Permitted Acquisition or permitted Investment), (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Initial Tranche A Term Loans, the Tranche B-1 Term Loans and ~~each~~ Second Amendment Incremental Term B Loans, the Secured Leverage Ratio for the most recently ended Test Period does not exceed 4.16:1.00 (or, to the extent such Incremental Facility is incurred in connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, the Secured Leverage Ratio for the most recently ended Test Period does not exceed the greater of 4.16:1.00 and the Secured Leverage Ratio immediately prior to such Permitted Acquisition or permitted Investment) or (C) if such Incremental Facility is unsecured or secured only by Liens on assets that do not constitute Collateral, the Total Leverage Ratio for the most recently ended Test Period does not exceed 5.30:1.00 (or, to the extent such Incremental Facility is incurred in connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, the Total Leverage Ratio for the most recently ended Test Period does not exceed the greater of 5.30:1.00 and the Total Leverage Ratio immediately prior to such Permitted Acquisition or permitted Investment), it being understood and agreed that Incremental Facilities may be incurred pursuant to this clause (iii) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving ~~Commitment Increase~~ Commitments and/or any Incremental Equivalent Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the “Incremental Incurrence Test”). Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $~~50 million (provided~~5,000,000 in case of Incremental Term Loans or $1,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth above. Each Incremental Facility (i) shall, if guaranteed, be guaranteed by the Guarantors that guarantee the other Obligations hereunder and (ii) if secured, will be secured by a Lien on the Collateral securing all of the other Obligations hereunder; provided that in the ~~next sentence)~~case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the applicable funds and related assets held in Escrow (and the proceeds thereof) until the time of the release from Escrow of such funds. ~~Notwithstanding anything to~~ -104- • Any Incremental Term Loans (other than Refinancing Term Loans) (i) for purposes of mandatory prepayments, shall be treated substantially the ~~contrary herein~~same as (and in any event no more favorably than) (x) in the case of Incremental Term A Loans, the ~~aggregate amount~~ Initial Tranche A Term Loans, or (y) in the case of Incremental Term B Loans, the ~~Incremental~~ Tranche B-1 Term Loans and the ~~Revolving Commitment Increases~~ Second Amendment Incremental Term B Loans, (ii) shall have interest rate margins, amortization schedule (subject to clauses (iii) and (iv) below), optional prepayment or redemption terms and other terms as determined by the Borrowers and the lenders thereunder (provided that, in the case of any Incremental Term Loans that are (A) incurred under the Incremental Incurrence Test (other ~~than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments~~ than pursuant to Section ~~2.16~~2.14(f)), (B) ~~shall not exceed~~ secured by the ~~Maximum~~ Collateral on a pari passu basis with the Second Amendment Incremental ~~Facilities Amount.~~ Term B Loans and pari passu in right of payment with the Second Amendment Incremental Term B Loans (bexcluding any Qualifying Bridge Facility), (C) ~~Any Revolving Commitment Increase shall be on~~ denominated in U.S. dollars, (D) in an aggregate principal amount in excess of the ~~same terms~~ greater of (I) $2,284,000,000 and ~~pursuant~~ (II) 100% of Consolidated EBITDA as of the most recent Test Period, (E) incurred during the first six (6) months after the Second Amendment Effective Date, (F) scheduled to mature prior to the ~~same documentation~~ date that is one (1) year after the Maturity Date applicable to the ~~Revolving Credit~~ Second Amendment Incremental Term B Loans, (G) not incurred to finance a Permitted Acquisition or other similar Investment and (H) broadly syndicated “term b” loans (any such Term Loans meeting the criteria of clauses (A) through (G) above and the following proviso, “Qualifying Term Loans”), if the Effective Yield for any such Incremental Term Loan exceeds the Effective Yield of the Second Amendment Incremental Term B Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to the Second Amendment Incremental Term B Loans shall be adjusted such that the Effective Yield of the Second Amendment Incremental Term B Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum, it being understood and agreed that the relative rate differentials in any pricing grid specified in the Applicable Rate shall continue to be maintained (the foregoing, including all qualifications and exceptions thereto, collectively, the ~~maturity date in respect thereof but excluding up-front commitment or similar fees~~“MFN Adjustment”); provided, ~~the Applicable Rate~~ further, that any increase in Effective Yield with respect to the ~~Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The~~ Second Amendment Incremental Term B Loans ~~(a)~~ due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the Second Amendment Incremental Term B Loans shall ~~rank pari passu or junior~~ be effected solely through an increase in ~~right of payment and of security with~~ the ~~Revolving Credit Loans and~~ interest rate floor applicable to the Second Amendment Incremental Term B Loans), (biii) other than with respect to any Inside Maturity Debt and any Qualifying Bridge Facility, any Incremental Term Loan shall not ~~mature~~ have a final maturity date earlier than the Maturity Date applicable to the Initial Tranche A Term Loans (if such Incremental Term Loans are Incremental Term A Loans) or Tranche B-1Term Loans or Second Amendment Incremental Term B Loans (if such Incremental Term Loans, in each case, are Incremental Term B Loans), as applicable, (iv) other than with respect to ~~the~~ any Inside Maturity Debt and any Qualifying Bridge Facility, any Incremental Term ~~Loans, (c)~~ Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Initial Tranche A Term Loans (if such Incremental Term Loans are Incremental Term A Loans) or Tranche B-1 Term Loans or Second Amendment Incremental Term B Loans (if such Incremental Term Loans, ~~(d) shall be entitled to share~~ in ~~mandatory and voluntary prepayments on a ratable (or less than ratable~~each case, ~~but in no event greater than ratable) basis with the~~ are Incremental Term B Loans), as applicable, and (ev) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent otherwise permitted by ~~clauses~~ this Section 2.14, shall have the same terms and conditions as the Initial Tranche A Term Loans (aif such Incremental Term Loans are Incremental Term A Loans) ~~through~~ or Tranche B-1 Term Loans or Second Amendment Incremental Term B Loans (~~e) above~~if such Incremental Term Loans, in each case, are Incremental Term B Loans), ~~they shall be~~ as applicable, or such terms as are reasonably satisfactory to the Administrative ~~Agent (~~Agent, it being understood ~~to the extent~~ that ~~any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase,~~ no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the Initial Tranche A Term Loans (if such Incremental Term Loans are Incremental Term A Loans) or ~~any Lender~~ Tranche B-1 Term Loans or Second Amendment Incremental Term B Loans (if such Incremental Term Loans, in each case, are Incremental Term B Loans), as applicable, to the extent that they apply to periods after the then Latest Maturity Date with respect to the Tranche A Term Loans (if such ~~financial maintenance covenant is also~~ Incremental Term Loans are Incremental Term A Loans) or Tranche B Term Loans or Second Amendment Incremental Term B Loans (if such Incremental Term Loans, in each case, are Incremental Term B Loans), as applicable, or are otherwise added for the benefit of ~~any corresponding existing~~ the Term Lenders holding Tranche A Term Loans (if such Incremental Term Loans are Incremental Term A Loans) or Term Lenders holding Tranche B Term Loans or Second Amendment Incremental Term B Loans (if such Incremental Term Loans, in each case, are Incremental Term B Loans), as applicable, hereunder. -105- • Any Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate margins and (subject to clauses (biii) and (civ)) ~~above~~amortization schedule as determined by the Borrowers and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the ~~amortization schedule (if any)~~ maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the ~~Incremental Term Loans~~ Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be ~~determined~~ on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) any Incremental Revolving Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments and (v) except to the extent otherwise permitted by ~~Parent~~ this Section 2.14, shall have the same terms and conditions as the ~~lenders thereof. (c)~~ Revolving Credit Commitments or such terms as are reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the Revolving Credit Commitments to the extent that they apply to periods after the then Latest Maturity Date with respect to the Revolving Credit Facility or are otherwise added for the benefit of the Revolving Credit Lenders hereunder. • Each notice from ~~Parent~~ the Borrowers pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or and/or Incremental Revolving ~~Commitment Increases~~Commitments. ~~Incremental Term Loans may be made~~Any additional bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided,~~ Person that ~~the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not~~ elects to ~~be unreasonably withheld) to such Lender’s or Additional Lender’s making such~~ extend Incremental Term Loans or ~~providing~~ Incremental Revolving Commitments shall be reasonably satisfactory to the Borrowers and, to the extent such ~~Revolving Commitment Increases~~ consent, if ~~such consent~~ any, would be required under Section ~~10.06(b~~10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Person, the Administrative Agent, the L/C Issuer and Swing Line Lender (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender~~. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases~~ ”) and, if not already a Lender, shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable Borrower~~Borrowers, such Additional Lender and, in the case of any Incremental Revolving Commitments, each L/C Issuer and Swing Line Lender ~~agreeing~~ and notified to ~~provide such Commitment, if any, each Additional Lender, if any, and~~ the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the ~~Agents or the Lenders, effect~~ Additional Lenders with respect to such ~~amendments to this Agreement and the other Loan Documents as may be necessary or appropriate~~Incremental Facility Amendment and, in the ~~reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect~~ case of Incremental ~~Term Loans as “Lenders”~~Revolving Commitments, the L/C Issuer and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this AgreementSwing Line Lender. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Commitments, unless it so agrees~~. (d) Upon each increase~~ . Commitments in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion respect of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans ~~in connection with a Permitted Acquisition may agree to modify~~ or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the ~~conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness~~ consent of any ~~Incremental Amendment shall be subject to~~other Lenders, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or effect such amendments to ~~the Collateral~~ any Loan Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.necessary o

Appears in 1 contract

Sources: Credit Agreement (Gen Digital Inc.)

Incremental Credit Extensions. (ai) ~~Parent may, at~~ At any time or and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver a copy~~ make such notice available to each of the Lenders), request ~~(a)~~ to effect one or more additional tranches of ~~term loans~~ revolving credit commitments (~~the~~ “Incremental ~~Term~~ Revolving Credit Commitments” and any related revolving credit loans thereunder, “Incremental Revolving Credit Loans”) or ~~(b) one or more~~ increases in the aggregate amount of the Revolving Credit Commitments of under any ~~Facility~~ existing Class (each such increase, a “Revolving Credit Commitment Increase”); ~~provided~~together with the Incremental Revolving Credit Loans, “Incremental Revolving Credit Facilities”) from Additional Revolving Credit Lenders; provided that at the time of each such request and upon the effectiveness of ~~any~~ each Incremental ~~Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto)~~Revolving Credit Facility Amendment, (iA) no ~~Default or~~ Event of Default shall ~~exist~~ result therefrom, (B) the aggregate principal amount of all Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes incurred after the Closing Date would not exceed (iix) ~~Parent shall be in~~ $500,000,000 plus (y) an additional amount to the extent that the Senior Secured First-Lien Net Leverage Ratio (treating all such Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes as Senior 631 Secured First-Lien Indebtedness solely for purposes of calculating such Senior Secured First-Lien Net Leverage Ratio even if such Indebtedness would not otherwise constitute Senior Secured First-Lien Indebtedness) on a Pro Forma ~~Compliance with Section 7.09 for~~ Basis after giving effect to the incurrence of any such proposed Incremental Revolving Credit Facilities and any related transactions (treating any proposed Incremental Revolving Credit Facilities and Additional Notes that are “revolving” in nature as fully drawn, but not including the proceeds of any proposed Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes in the amount of cash to be netted in calculating such ratio) would be less than or equal to 4.0:1.0 as of the end of the most recently ended Test ~~Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase~~ Period, (C) the Borrower shall be in ~~an aggregate principal amount that is~~ compliance on a Pro Forma Basis (treating any proposed Incremental Revolving Credit Facility as fully drawn, but not ~~less than $50 million (provided, that~~ including the proceeds of any such ~~amount may be less than $50 million if such amount represents all remaining availability under the limit set forth~~ deemed draw in the ~~next sentence~~amount of cash to be netted in calculating such ratio) with the Financial Performance Covenant as of the end of the most recent Test Period (regardless of whether such Financial Performance Covenant is applicable at such time)~~. Notwithstanding anything~~ , (D) (i) in the case of any Incremental Revolving Credit Loans, the maturity date thereof shall be no earlier than the Revolving Credit Maturity Date, such Incremental Revolving Credit Loans shall require no scheduled amortization or mandatory commitment reduction prior to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit ~~Commitments pursuant to Section 2.16~~Maturity Date and (ii) ~~shall not exceed the Maximum Incremental Facilities Amount. (b) Any~~ any Revolving Credit Commitment Increase shall be on the same terms (and pursuant to the same ~~documentation applicable to~~ documentation) governing the Revolving Credit ~~Facility~~ Commitments pursuant to this Agreement (including ~~the maturity date in respect thereof~~ upfront fees, but excluding ~~up-front commitment or similar~~ customary arranger fees)~~; provided~~, (E) the interest rate margins and, subject to clause (D), the ~~Applicable Rate with respect~~ amortization schedule applicable to ~~the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The~~ any Incremental ~~Term Loans (a) shall rank pari passu or junior in right of payment and of security with the~~ Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders~~Lenders thereunder; ~~provided, however,~~ provided that if in the ~~All-In~~ event that the Effective Yield for any Incremental ~~Term~~ Revolving Credit Loans ~~that are incurred under this Section 2.14 on a date that~~ is ~~prior to~~ higher than the ~~twelve (12) month anniversary of~~ Effective Yield for the ~~Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term~~ Revolving Credit Loans by more than 50 basis points, then the ~~interest rate margins applicable to~~ Effective Yield for the ~~Term~~ Revolving Credit Loans shall be increased to the extent necessary so that such ~~excess shall be only~~ Effective Yield is equal to the Effective Yield for such Incremental Revolving Credit Loans minus 50 basis points~~. The~~ ; provided, further, that, in determining the Effective Yield applicable to the Incremental ~~Term~~ Revolving Credit Loans incurred pursuant to such Incremental Revolving Credit Facility and the Revolving Credit Loans, (x) OID or upfront fees (which shall be deemed to constitute like amounts of OID for purposes of this determination) payable by the Borrower to the Revolving Credit Lenders or any Additional Revolving Credit Lenders (with OID being equated to interest based on assumed four-year life to maturity) shall be included, (y) customary arrangement or commitment fees payable to the Joint Bookrunners (or their Affiliates) in connection with this Agreement or to one or more arrangers (or their Affiliates) of any Incremental Revolving Credit Loans shall ~~otherwise~~ be excluded and (z) if the Incremental Revolving Credit Loan includes an interest rate floor greater than the interest rate floor applicable to the Revolving Credit Loans, such increased amount shall be equated to interest margin for purposes of determining whether an increase to the applicable interest margin for the Revolving Credit Loans shall be required, to the extent an increase in the interest rate floor in the Revolving Credit Loans would cause an increase in the interest rate then in effect, and in such case the interest rate floor applicable to the Revolving Credit Loans shall be increased by such increased amount and (F) any Incremental Revolving Credit Facility Amendment entered into after the Closing Date shall be on the terms and pursuant to documentation to be determined by ~~Parent~~the Borrower and the Additional Revolving Credit Lenders with the applicable Incremental Revolving Credit Facilities; provided ~~that,~~ that to the extent such terms and documentation are not consistent with ~~the Term Loans~~ this Agreement (except to the extent permitted by clauses (aD) ~~through~~ and (eE) above), they shall be reasonably satisfactory to the Administrative Agent; provided further that no L/C Issuer or Swing Line Lender shall be required to act as “issuing bank” or “swingline lender” under any such Incremental Revolving Credit Facility without its written consent. Each Incremental Revolving Credit Facility shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof unless such amount represents all the remaining availability under the aggregate principal amount of Incremental Revolving Credit Facilities set forth above. (ii) At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (~~it being understood~~ whereupon the Administrative Agent shall promptly make a copy of such notice available to each of the Lenders), request to effect one or more additional tranches of term loans hereunder (“Incremental Term Loans”) or increases in the aggregate amount of the Term Commitments of any existing Class, which shall take the form of an additional tranche of term loans hereunder (each such increase, a “Term Commitment Increase”; together with the Incremental Term Loans, the “Incremental Term Facilities”) from one or more Additional Term Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Term Facility Amendment, (A) no Event of Default shall result therefrom, (B) the aggregate principal amount of all Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes incurred after the Closing Date would not exceed (x) $500,000,000 plus (y) an additional amount to the extent that ~~any financial maintenance covenant is added~~ the Senior Secured First-Lien Net Leverage Ratio (treating all such Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes as Senior Secured First-Lien Indebtedness solely for purposes of calculating such Senior Secured First-Lien Net Leverage Ratio even if such Indebtedness would not otherwise constitute Senior Secured First-Lien Indebtedness) on a Pro Forma Basis after giving effect to the ~~benefit~~ incurrence of any such proposed Incremental Term ~~Loan~~ Facility and any related transactions (treating any proposed Incremental Revolving Credit Facilities and Additional Notes that are “revolving” in nature as fully drawn, but not including the proceeds of any proposed Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes in the amount of cash to be netted in calculating such ratio) would be less than or ~~Revolving Commitment Increase~~equal to 4.0:1.0 as of the end of the most recently ended Test Period, ~~no consent~~ (C) the Borrower shall be ~~required from~~ in compliance on a Pro Forma Basis with the ~~Administrative Agent or any Lender to~~ Financial Performance Covenant as of the ~~extent that~~ end of the most recent Test Period (regardless of whether such ~~financial maintenance covenant~~ Financial Performance Covenant is ~~also added for~~ applicable at such time), (D) the ~~benefit~~ maturity date of any ~~corresponding existing~~ such Incremental Term Facility shall not be earlier than the Term B Maturity Date, (E) the Weighted Average Life to Maturity of any such Incremental Term Facility shall not be shorter than the remaining Weighted Average Life to Maturity of the Term B Loans, (F) ~~and~~ the interest rate margins and, subject to ~~clauses~~ clause (~~b) and (c) above~~E), the amortization schedule ~~(if any)~~ for any Incremental Term Facility shall be determined by the Borrower and the Additional Term Lenders thereunder; provided that in the event that the Effective Yield for any Incremental Term Facility is higher than the Effective Yield for the Term B Loans by more than 50 basis points, then the Effective Yield for the Term B Loans shall be increased to the extent necessary so that such Effective Yield is equal to 633 the Effective Yield for such Incremental Term Facility minus 50 basis points; provided, further, that, in determining the Effective Yield applicable to the Incremental Term Facility and the Term B Loans (x) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by Borrower to the Term B Lenders or any Additional Term Lenders in the initial primary syndication thereof (with OID being equated to interest based on assumed four-year life to maturity) shall be included, (y) customary arrangement or commitment fees payable to the Joint Bookrunners (or their Affiliates) in connection with this Agreement or to one or more arrangers (or their Affiliates) of any Incremental Term Facility shall be excluded and (z) if the Incremental Term Facility includes an interest rate floor greater than the interest rate floor applicable to the Term B Loans, such increased amount shall be equated to interest margin for purposes of determining whether an increase to the applicable interest margin for the Term B Loans shall be required, to the extent an increase in the interest rate floor in the Term B Loans would cause an increase in the interest rate then in effect, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term B Loans shall be increased by such increased amount and (G) any Incremental Term Facility Amendment entered into after the Closing Date shall be on the terms and pursuant to documentation to be determined by ~~Parent~~ the Borrower and the ~~lenders thereof~~Additional Term Lenders with the applicable Incremental Term Facilities; provided that to the extent such terms and documentation are not consistent with this Agreement (except to the extent permitted by clause (F) above), they shall be reasonably satisfactory to the Administrative Agent. Each Incremental Term Facility incurred after the Closing Date shall be in a minimum principal amount of $10,000,000 and, except with respect to the Term Commitment Increase, integral multiples of $1,000,000 in excess thereof unless such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Facilities set forth above. (ci) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount ~~and proposed terms~~ of the relevant Incremental ~~Term Loans or~~ Revolving Credit Loan, Revolving Credit Commitment ~~Increases.~~ Increase, Incremental Term ~~Loans may be made, and Revolving~~ Loan or Term Commitment ~~Increases may be provided, by any existing Lender or by any other bank or other financial institution~~ Increase. (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheldii) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of any Incremental ~~Term Loans and~~ Revolving Credit Loan or Revolving Credit Commitment ~~Increases~~ Increase incurred after the Closing Date shall become Commitments (or in the case of a any Revolving Credit Commitment Increase to be provided after the Closing Date by an existing Revolving Credit Lender, an increase in such Revolving Credit Lender’s ~~applicable~~ Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Credit Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional ~~Lender, if any,~~ Revolving Credit Lenders and the Administrative Agent. ~~The~~ Incremental Revolving Credit Loans and Revolving Credit Commitment Increases may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Credit Facility or, unless it agrees, be obligated to provide any Incremental Revolving Credit Loan or Revolving Credit Commitment Increase) or by any other Additional Revolving Credit Lender. An Incremental Revolving Credit Facility Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to any Loan Documents as may be necessary or 634 appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Revolving Credit Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Revolving Credit Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Credit Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Revolving Credit Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). (iii) Commitments in respect of any Incremental Term Facility shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Term Lenders and the Administrative Agent. Incremental Term Facilities may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have any right to participate in any Incremental Term Facility or, unless it agrees, be obligated to provide any Incremental Term Loan or Term Commitment Increase thereunder) or by any other Additional Term Lender. An Incremental Term Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicableSection. The effectiveness of any Incremental Term Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Term Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such ~~further conditions as Parent and the applicable Lenders and Additional Lenders~~ Borrowing” in Section 4.02 shall ~~agree. The Borrowers may use the proceeds of~~ be deemed to refer to the Incremental Term ~~Loans and Revolving Commitment Increases for any purpose not prohibited~~ Facility Closing Date) and, to the extent reasonably requested by ~~this Agreement. No Lender shall be obligated~~ the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to ~~provide any Incremental Term Loans~~ such legal opinions resulting from a change in law, change in fact or ~~Revolving Commitment Increases, unless it so agrees~~change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). (di) Upon effectiveness of each ~~increase in the~~ Revolving Credit ~~Commitments~~ Commitment Increase pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Additional Revolving Credit Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.Inc

Appears in 1 contract

Sources: Credit Agreement

Incremental Credit Extensions. (ai) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower or any Guarantor may, by notice to the Administrative Agent or the Revolver Agent, as applicable (whereupon the Administrative Agent or the Revolver Agent, as applicable, shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of any Class of Initial Term Loans or add one or more additional tranches of term loans (any such Initial Term Loans or additional tranche of term loans, the “Incremental Term Loans”) ~~or (b)~~ and/or one or more increases in the Revolving Credit Commitments (a “Revolving Credit Commitment Increase”) and/or establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed (i) prior to the Conversion Date, $1,375,000,000 and (ii) after the Conversion Date, the greater of (y) $1,375,000,000 and (z) 50% of LTM EBITDA (such amount in clauses (i) and (ii) the “Unrestricted Incremental Amount”) plus (iii) the amount of any voluntary prepayments, redemptions, repurchases or other retirements of the Term Loans and any other Indebtedness (in the case of such other Indebtedness, to the extent such Indebtedness is (x) secured on a pari passu basis with respect to security with the Secured Obligations, (y) secured on a junior lien basis with the Secured Obligations or (z) unsecured, and so long as it was, in the case of clause (y) or (z), originally incurred under the Unrestricted Incremental Amount), payments made pursuant to Section 3.06(a) and voluntary permanent reductions of revolving commitments secured on a pari passu basis with respect to security with the Secured Obligations, which reductions are effected after the Closing Date (including pursuant to debt buy-backs made by the Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of revolving commitments in connection with a substantially concurrent issuance of new revolving commitments thereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit ~~Commitments of any~~ Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) (~~each such increase~~this clause (iii), a the “~~Revolving Commitment Increase~~Voluntary Prepayment Amount”~~); provided~~) plus (iv) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, ~~that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (~~after giving pro forma effect thereto and after giving effect ~~thereto~~to any Permitted Investment consummated in connection therewith and all other appropriate pro forma adjustments (but excluding the cash proceeds of any such Incremental Facilities and without giving effect to any amount incurred simultaneously under (x) the Unrestricted Incremental Amount or the Voluntary Prepayment Amount or (y) the Revolving Credit Facility), (iA) ~~no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance~~ if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with ~~Section 7.09~~ the Liens securing the Initial Term Loans, the Consolidated First Lien Secured Leverage Ratio for the most recently ended Test Period does not exceed 1.35:1.00, (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Initial Term Loans, is secured by assets not constituting Collateral or is unsecured, the Consolidated Total Leverage Ratio for ~~which financial statements have been delivered~~ the most recently ended Test Period does not exceed either (1) 3.04.00:1.00 or (2) with the written consent of the Required Revolving Credit Lenders (and for the avoidance of doubt, without the need for the consent of any other Lender), 4.50:1.00; provided that Incremental Facilities may be incurred pursuant to ~~Section 6.01~~this clause (iv) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Credit Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iv), the “Incremental Incurrence Test”). Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1.0 million and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $50 5.0 million ~~(provided~~in case of Incremental Term Loans or $5.0 million in case of Incremental Revolving Credit Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amountabove. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Frontier Communications Parent, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ (i) At any time or and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver a copy~~ make such notice available to each of the Lenders), request ~~(a)~~ to effect one or more additional tranches of ~~term loans~~ revolving credit commitments (~~the~~ “Incremental ~~Term~~ Revolving Credit Commitments” and any related revolving credit loans thereunder, “Incremental Revolving Credit Loans”) or ~~(b) one or more~~ increases in the aggregate amount of the Revolving Credit Commitments of under any ~~Facility~~ existing Class (each such increase, a “Revolving Credit Commitment Increase”); ~~provided~~together with the Incremental Revolving Credit Loans, “Incremental Revolving Credit Facilities”) from Additional Revolving Credit Lenders; provided that at the time of each such request and upon the effectiveness of ~~any~~ each Incremental ~~Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto)~~Revolving Credit Facility Amendment, (iA) no ~~Default or~~ Event of Default shall ~~exist~~ result therefrom, (B) the aggregate principal amount of all Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes that can be incurred at any time shall not, at such time, exceed (iiI)(a) ~~Parent shall be~~ $97,000,000 less (b) the sum of the amount of all Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes that was incurred after July 18, 2016 in reliance on the foregoing clause (a), plus (II) an additional amount to the extent that the Senior Secured First-Lien Net Leverage Ratio (treating all outstanding Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes as Senior Secured First-Lien Indebtedness solely for purposes of calculating such Senior Secured First-Lien Net Leverage Ratio even if such Indebtedness would not otherwise constitute Senior Secured First-Lien Indebtedness) on a Pro Forma ~~Compliance with Section 7.09 for~~ Basis after giving effect to the incurrence of any such proposed Incremental Revolving Credit Facilities and any related transactions (treating any proposed Incremental Revolving Credit Facilities and Additional Notes that are “revolving” in nature as fully drawn, but not including the proceeds of any proposed Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes in the amount of cash to be netted in calculating such ratio but without giving effect to any simultaneous incurrence of any Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes made pursuant to the foregoing clause (I)) would be less than or equal to 4.0:1.0 as of the end of the most recently ended Test ~~Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche~~ Period; provided that such Indebtedness may be incurred under both clauses (I) and (II) of this clause (B), and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under clause (II) above and then calculating the incurrence under clause (I) above, and vice versa, as the Borrower shall elect (the sum of clauses (I) and (II) of this clause B, the “Incremental ~~Term Loans and each Revolving Commitment Increase~~ Cap”)the Incremental Cap, (C) the Borrower shall be in ~~an aggregate principal amount that is~~ compliance on a Pro Forma Basis (treating any proposed Incremental Revolving Credit Facility as fully drawn, but not ~~less than $50 million (provided, that~~ including the proceeds of any such ~~amount may be less than $50 million if such amount represents all remaining availability under the limit set forth~~ deemed draw in the ~~next sentence~~amount of cash to be netted in calculating such ratio) with the Financial Performance Covenant as of the end of the most recent Test Period (regardless of whether such Financial Performance Covenant is applicable at such time)~~. Notwithstanding anything~~ , (D) (i) in the case of any Incremental Revolving Credit Loans, the maturity date thereof shall be no earlier than the Revolving Credit Maturity Date, such Incremental Revolving Credit Loans shall require no scheduled amortization or mandatory commitment reduction prior to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit ~~Commitments pursuant to Section 2.16~~Maturity Date and (ii) ~~shall not exceed the Maximum Incremental Facilities Amount. (b) Any~~ any Revolving Credit Commitment Increase shall be on the same terms (and pursuant to the same ~~documentation applicable to~~ documentation) governing the Revolving Credit ~~Facility~~ Commitments pursuant to this Agreement (including ~~the maturity date in respect thereof~~ upfront fees, but excluding ~~up-front commitment or similar~~ customary arranger fees)~~; provided~~, (E) the interest rate margins and, subject to clause (D), the ~~Applicable Rate with respect~~ amortization schedule applicable to ~~the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The~~ any Incremental ~~Term Loans (a) shall rank pari passu or junior in right of payment and of security with the~~ Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by ~~Parent~~ the Borrower and the ~~applicable new Lenders~~Lenders thereunder; ~~provided~~provided that, ~~however, that if~~ for any Incremental Revolving Credit Facility made on or prior to the ~~All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a~~ date that is ~~prior to~~ 18 months after the ~~twelve (12) month anniversary of the~~ Third Incremental Amendment ~~No. 2~~ Effective Date, ~~shall exceed~~ in the ~~All-In~~ event that the Effective Yield ~~with respect to~~ for any Incremental Revolving Credit Loans is higher than the ~~Term~~ Effective Yield for the Revolving Credit Loans by more than 50 basis points, then the ~~interest rate margins applicable to~~ Effective Yield for the ~~Term~~ Revolving Credit Loans shall be increased to the extent necessary so that such ~~excess shall be only~~ Effective Yield is equal to the Effective Yield for such Incremental Revolving Credit Loans minus 50 basis points~~. The~~ ; provided, further, that, in determining the Effective Yield applicable to the Incremental ~~Term~~ Revolving Credit Loans incurred pursuant to such Incremental Revolving Credit Facility and the Revolving Credit Loans, (x) OID or upfront fees (which shall be deemed to constitute like amounts of OID for purposes of this determination) payable by the Borrower to the Revolving Credit Lenders or any Additional Revolving Credit Lenders (with OID being equated to interest based on assumed four-year life to maturity) shall be included, (y) customary arrangement or commitment fees payable to the Joint Bookrunners (or their Affiliates) in connection with this Agreement or to one or more arrangers (or their Affiliates) of any Incremental Revolving Credit Loans shall ~~otherwise~~ be excluded and (z) if the Incremental Revolving Credit Loan includes an interest rate floor greater than the interest rate floor applicable to the Revolving Credit Loans, such increased amount shall be equated to interest margin for purposes of determining whether an increase to the applicable interest margin for the Revolving Credit Loans shall be required, to the extent an increase in the interest rate floor in the Revolving Credit Loans would cause an increase in the interest rate then in effect, and in such case the interest rate floor applicable to the Revolving Credit Loans shall be increased by such increased amount and (F) any Incremental Revolving Credit Facility Amendment entered into after the Closing Date shall be on the terms and pursuant to documentation to be determined by ~~Parent~~the Borrower and the Additional Revolving Credit Lenders with the applicable Incremental Revolving Credit Facilities; provided ~~that,~~ that to the extent such terms and documentation are not consistent with ~~the Term Loans~~ this Agreement (except to the extent permitted by clauses (aD) ~~through~~ and (eE) above), they shall be reasonably satisfactory to the Administrative ~~Agent (it being understood to the extent~~ Agent; provided further that ~~any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase,~~ 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer ~~shall have consented (not to be unreasonably withheld) to such Lender’s~~ or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Swing Line Lender shall be ~~obligated~~ required to ~~provide~~ act as “issuing bank” or “swingline lender” under any such Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility ~~only), a portion of such~~ without its written consent. Each Incremental Revolving Credit ~~▇▇▇▇▇▇’s participations hereunder~~ Facility shall be in ~~outstanding Letters~~ a minimum principal amount of ~~Credit~~ $5,000,000 and ~~Swing Line Loans~~ integral multiples of $1,000,000 in excess thereof unless such ~~that, after giving effect to each such deemed assignment and assumption of participations,~~ amount represents all the ~~percentage of~~ remaining availability under the aggregate ~~outstanding (i) participations hereunder in Letters~~ principal amount of ~~Credit and (ii) participations hereunder in Swing Line Loans held by each~~ Incremental Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceFacilities set forth above. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Third Incremental Term Facility Amendment (Sabre Corp)

Incremental Credit Extensions. (a) ~~Parent may~~Subject to Section 2.14(f), (including the priorities applicable to the Priority Payment Obligations), at any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower or any Subsidiary Guarantor may, by written notice to the Administrative ~~Agent~~ Agents and the Term Representative (whereupon the Administrative ~~Agent~~ Agents shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of any Class of Initial Term Loans or add one or more additional tranches of term loans (any such Initial Term Loans or additional tranche of term loans, the “Incremental Term Loans”) ~~or (b)~~ and/or one or more increases in the Revolving Credit Commitments (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments and, to the extent constituting Priority Payment Obligations, Additional Revolving Credit Commitments, Revolving Credit Commitment Increases and Incremental Revolving Credit Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) the greater of (x) $45.0 million and (y) 75.0% of LTM EBITDA (such amount, the “Incremental Starter Amount”) plus (ii) (I) the aggregate amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans and any other Indebtedness (in the case of such other Indebtedness, to the extent such Indebtedness is (x) secured on a pari passu basis with respect to security with the Obligations, (y) secured on a junior lien basis with the Obligations or (z) unsecured, and solely to the extent it was, in the case of clause (y) or (z), originally incurred pursuant to the Unrestricted Incremental Amount), payments made pursuant to Section 3.06(a) (to the extent such Indebtedness is retired rather than assigned) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (in each case, including pursuant to debt buy-backs made by Holdings or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the principal amount thereof, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) and (II) in the case of an Incremental Facility (~~each such increase~~that is being incurred using the Unrestricted Incremental Amount) that serves to effectively extend the maturity of the Initial Term Loans, ~~a “~~the Revolving ~~Commitment Increase”); provided~~Credit Facility and/or any other Incremental Facility, ~~that upon~~ an amount equal to the ~~effectiveness~~ portion of the Initial Term Loans, the Revolving Credit Facility and/or any other Incremental ~~Amendment referred~~ Facilities to ~~below and at the time that any~~ be replaced with such Incremental ~~Term Loan is made~~ Facility (such amount under this clause (ii), the “Voluntary Prepayment Amount” and, together with the Incremental Starter Amount, the “Incremental Starter Basket,” the “Unrestricted Incremental Amount”) plus (iii) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, after giving pro forma effect thereto and after giving effect ~~thereto~~to any Permitted Investment consummated in connection therewith, any indebtedness repaid with the proceeds thereof and any other acquisition, disposition, debt incurrence, debt retirement and other appropriate pro forma adjustments and all other appropriate pro forma adjustments (but excluding the cash proceeds of any such Incremental Facilities and Permitted Alternative Incremental Facilities Debt and without giving effect to any amount incurred simultaneously under (x) the Unrestricted Incremental Amount, (y) any other fixed dollar incurrence basket or (z) the Revolving Credit Facility) (and, in each case, for the avoidance of doubt, for purposes of calculating the Interest Coverage Ratio, without giving effect to any interest expense attributable to any such Indebtedness in connection therewith), (iA) ~~no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance~~ if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with ~~Section 7.09~~ the Liens securing the Initial Term Loans, the Consolidated First Lien Secured Leverage Ratio for the most recently ended Test Period does not exceed 5.75:1.00, (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Initial Term Loans, the Consolidated Total Senior Secured Leverage Ratio for ~~which financial statements have been delivered~~ the most recently ended Test Period does not exceed 6.25:1.00 or (C) if such Incremental Facility is unsecured, the Consolidated Total Leverage Ratio for the most recently ended Test Period does not exceed 6.25:1.00 (this clause (iii), the “Incremental Incurrence Test”); provided that (x) Incremental Facilities may be incurred pursuant to ~~Section 6.01~~this clause (iii) prior to utilization of the Unrestricted Incremental Amount, (y) assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Credit Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness and (z) any Indebtedness originally incurred under the Unrestricted Incremental Amount shall be automatically and immediately (without duplication) reclassified (unless the Borrower otherwise elects from time to time) as having been incurred under this clause (iii), at any time the Borrower would be permitted to incur under this clause (iii) the aggregate principal amount of the Indebtedness being so reclassified (for purposes of clarity, with any such reclassification having the effect of increasing the Borrower’s ability to incur Indebtedness under the Unrestricted Incremental Amount on and after the date of such reclassification by the amount of Indebtedness so re-designated). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities constituting Priority Payment Obligations in the form of Additional Revolving Credit Commitments, Revolving Credit Commitment Increases and Incremental Revolving Credit Commitments) (determined at the time of incurrence) shall not exceed the Initial Revolving Credit Facility Cap. Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1.0 million and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $50 5.0 million ~~(provided~~in case of Incremental Term Loans or $5.0 million in case of Incremental Revolving Credit Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amountabove. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (aother than Refinancing Term Loans) (i) for purposes of mandatory prepayments, shall ~~rank pari passu or junior~~ be treated substantially the same as (and in ~~right of payment and of security with the Revolving Credit Loans and~~ any event no more favorably than) the Term Loans, (bii) shall have interest rate margins (including “MFN” protection), (subject to clauses (iii) and (iv)), amortization schedule and other terms as determined by the Borrower and the Lenders thereunder (provided that, solely in the case of any Incremental Term Loans that are incurred on or prior to the date that is first twenty four (24) months after the Closing Date, if the Effective Yield of any such Incremental Term Loans that are MFN Qualifying Term Loans exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to such Initial Term Loans shall be adjusted such that the Effective Yield of such Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum, it being understood and agreed that the relative rate differentials in any pricing grid specified in the Applicable Rate shall continue to be maintained (the foregoing, including all qualifications and exceptions thereto, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the applicable Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to such Initial Term Loans), (iii) any Incremental Term Loan shall not ~~mature~~ have a final maturity date earlier than the Maturity Date ~~with respect~~ applicable to the Initial Term Loans, (civ) any Incremental Term Loan shall not have a ~~shorter~~ Weighted Average Life to Maturity that is shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any prepayments), (v) shall not be guaranteed by any person other than the Loan Parties and, to the extent secured, shall not be secured by any assets other than the Collateral, (vi) for purposes of voluntary and mandatory prepayments, shall, unless less favorable treatment is otherwise agreed by the Lenders providing such Incremental Term Loans, share ratably in (~~d) shall be entitled~~ or, if junior in right of payment or as to ~~share in mandatory and voluntary prepayments~~ security, on a ~~ratable (or less than ratable, but in no event greater than ratable)~~ junior basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Initial Term Loans) any voluntary and mandatory prepayments of the Initial Term Loans ~~by more than 50 basis points, then the interest rate margins applicable to the Term Loans~~ and (vii) shall ~~be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise~~ be on terms and conditions and pursuant to documentation to be determined ~~by Parent; provided~~ between the Borrower and the Lenders providing such Incremental Term Loans (provided, that, to the extent such terms and documentation are not consistent with the existing Term Loans (~~except~~ but excluding any terms applicable only after the applicable Maturity Date applicable to the ~~extent permitted by clauses (a) through (e) above~~existing Term Loans), they shall either, at the option of the Borrower, shall (A) reflect market terms and conditions (taken as a whole) at the time of (subject to Section 1.09(a)) incurrence or effectiveness (as determined by the Borrower in good faith); provided, that if any terms or conditions of such Incremental Term Loans are less favorable to the Borrower, taken as a whole, than the terms or conditions of the Term Loans existing on the date of incurrence of such Incremental Term Loans, the Term Loans shall receive the benefit of such terms or conditions through their addition to the Loan Documents, or (B) be reasonably satisfactory to the ~~Administrative Agent~~ Term Representative (it being understood ~~to the extent~~ that ~~any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase,~~ no consent shall be required from the ~~Administrative Agent~~ Term Representative for any terms or ~~any Lender to~~ conditions that are not market terms if the ~~extent that~~ Lenders under the Term Loans existing on the date of incurrence of such ~~financial maintenance covenant is also added for~~ Incremental Term Loans receive the benefit of ~~any corresponding existing Term Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable~~ such terms or conditions through their addition to the ~~Incremental Term Loans shall be determined by Parent and the lenders thereof~~Loan Documents)). (c) Any Incremental Revolving Credit Commitments (other than Refinancing Revolving Credit Commitments) (i) for purposes of mandatory prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (ii) shall have interest rate margins (subject to clauses (iii) and (iv)) as determined by the Borrower and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) any Incremental Revolving Credit Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Credit Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments, and (v) shall be on terms and conditions and pursuant to documentation to be determined between the Borrower and the Lenders providing such Incremental Revolving Credit Commitments. (d) Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Credit Commitments shall be ~~made,~~ reasonably satisfactory to the Borrower and ~~Revolving Commitment Increases may be~~ the Administrative Agents (provided, by each Administrative Agent’s consent shall only be required if such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed) (any such bank, financial institution, existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the ~~applicable~~ Borrower, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, ~~if any, and~~ the Administrative Agents and, in the case of any Incremental Revolving Credit Commitments and each L/C Issuer; provided, each Administrative Agent’s and/or L/C Issuer’s consent shall only be required if such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed or otherwise pursuant to Section 10.01. ~~The~~ For the avoidance of doubt, no L/C Issuer is required to act as such for any Additional Revolving Credit Commitments unless they so consent; provided that, no Affiliated Lender or Debt Fund Affiliate shall be permitted to provide Incremental Revolving Credit Commitments. No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in Additional Lenders with respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such ~~further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the~~ Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement~~Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments, unless it so agrees~~. (d) Upon each increase~~ . Commitments in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion respect of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans ~~in connection with a Permitted Acquisition~~ or Incremental Revolving Credit Commitments may ~~agree~~ become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to ~~modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition~~ any Loan Documents as may be ~~consummated on a “certain funds” basis. (f)~~ necessary or appropriate, in the opinion of the Administrative Agents, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed by the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such Credit Extension” in Section 4.02 shall be ~~subject to, if requested by~~ deemed to refer to the ~~Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the~~ Incremental Facility Closing Date and (~~conformed as appropriate~~y) if the proceeds of such Incremental Facility are to be used, ~~including to reflect any Incremental Term Loans provided on a “certain funds” basis)~~in whole or in part, (ii1) ~~reaffirmation agreements and/or such amendments~~ to finance a Permitted Investment, (A) the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the only representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.will b

Appears in 1 contract

Sources: Credit Agreement (Shoals Technologies Group, Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of Term Loans or add one or more additional tranches of term loans (any such Term Loans or additional tranche of term loans, the “Incremental Term Loans” or the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans) or (bdetermined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) ~~one or more increases~~ the Unrestricted Incremental Second Lien Amount minus the aggregate principal amount of “Incremental Term Loans” and “Permitted Alternative Incremental Facilities Debt” incurred under the Unrestricted Incremental First Lien Amount (each as defined in the First Lien Credit Agreement) plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the ~~Revolving~~ Term Loans and without duplication of amounts incurred under Section 2.14 of the First Lien Credit ~~Commitments~~ Agreement as a result of any such prepayment or commitment reduction, voluntary prepayment of Term Loans (as defined in the First Lien Credit Agreement) effected after the Closing Date (including pursuant to debt buy-backs made by any Parent, the Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof, but excluding (A) any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder and (B) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the ABL Facility or other revolving indebtedness)) (~~each such increase~~this clause (ii), a the “~~Revolving Commitment Increase~~Voluntary Prepayment Amount”~~); provided~~) plus (iii) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, ~~that upon~~ after giving Pro Forma Effect thereto and after giving effect to any Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the ~~effectiveness~~ cash proceeds of ~~any Incremental Amendment referred to below and at the time that~~ any such Incremental Term ~~Loan is made (and after giving effect thereto~~Loans), ~~(i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09~~ the Senior Secured Leverage Ratio for the most recently ended Test Period ~~for which financial statements have been delivered~~ shall not exceed 5.00:1.00 (other than (x) amounts incurred concurrently with the incurrence of Indebtedness incurred in reliance on the Unrestricted Incremental Second Lien Amount and/or the Voluntary Prepayment Amount and (y) amounts incurred concurrently or substantially concurrently with the incurrence of Indebtedness pursuant to ~~Section 6.01~~drawings under the ABL Facility, in which case the Senior Secured Leverage Ratio may exceed 5.00:1.00, as a result of the incurrence of such amounts, and it being understood that Incremental Facilities may be incurred pursuant to this clause (iii) prior to utilization of the Unrestricted Incremental Second Lien Amount and the Voluntary Prepayment Amount) (this clause (iii), the “Incremental Incurrence Test”). Each ~~tranche~~ Incremental Facility shall be in an integral multiple of ~~Incremental Term Loans~~ $1,000,000 and ~~each Revolving Commitment Increase shall~~ be in an aggregate principal amount that is not less than $~~50 million (provided~~5,000,000, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in above. Each Incremental Facility shall have the ~~next sentence). Notwithstanding anything to~~ same guarantees as, and be secured on a pari passu basis by the ~~contrary herein~~same Collateral securing, ~~the aggregate amount~~ all of the ~~Incremental Term Loans and the Revolving Commitment Increases (~~other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities AmountObligations hereunder. (b) Any ~~Revolving Commitment Increase~~ Incremental Term Loans (other than Refinancing Term Loans) (i) for purposes of prepayments, shall be on treated substantially the same as (and in any event no more favorably than) the Initial Term Loans, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that, if the Effective Yield of any Incremental Term Loans incurred after the Closing Date exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to the Initial Term Loans shall be adjusted such that the Effective Yield of the Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum (the foregoing, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to the Initial Term Loans), (iii) any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to the Initial Term Loans, (iv) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term Loans and (v) except to the extent otherwise permitted by this Section 2.14, shall have the same terms and ~~pursuant to~~ conditions as the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Initial Term Loans (aother than any terms and conditions that (x) ~~shall rank pari passu or junior in right of payment and of security with~~ apply only to periods after the ~~Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the~~ then Latest Maturity Date with respect to the Term Loans, (cy) ~~shall not have a shorter Weighted Average Life to Maturity than~~ are otherwise added for the ~~remaining Weighted Average Life to Maturity~~ benefit of the Term ~~Loans,~~ Lenders hereunder or (dz) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereofAgent). (c) [Reserved]. (d) Each notice from ~~Parent~~ the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans~~ Loans. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ shall be ~~made~~reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Parents, the Borrower, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, ~~if any, and~~ the Administrative Agent. ~~The~~ No Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees. Term Commitments in respect of any Incremental Term Loans shall become Term Commitments under this Agreement. An Incremental Facility Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14~~, including without limitation to incorporate the applicable lenders in respect of~~ . Any Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to ~~this Section 2.14, (a) each Revolving Credit Lender immediately prior~~ documentation to ~~such increase will automatically and without further act~~ be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencemutually agreed. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Facility Amendment ~~shall be subject to~~shall, ~~if requested by the Administrative Agent, receipt~~ unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties ~~contained~~ of each Loan Party set forth in ~~Article V~~ Section 4.02 being true and ~~the other Loan Documents~~ correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date) and (orii) subject to Section 1.09, ~~with respect~~ no Default or Event of Default shall exist, or would result from such issuance of the proceeds of such Incremental Facility; provided in the case of Incremental Facilities the proceeds of which will be used to finance a Limited Condition Transaction, (1) the only representations and warranties ~~modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except~~ that will be required to ~~the extent that such representations and warranties specifically refer to an earlier date, in which case they shall~~ be true and correct in all material respects ~~(or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects)~~ as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (2) no Specified Events of Default shall be continuing at the time such ~~earlier date~~Limited Condition Transaction is consummated. The proceeds of any Incremental Term Loans will be used only for general corporate purposes (including (without limitation) Permitted Acquisitions). (gf) ~~This Section 2.14 shall supersede~~ Any portion of any ~~provisions in Section 2.13 or 10.01~~ Incremental Facility incurred other than under the Incremental Incurrence Test may be reclassified at any time, as the Borrower may elect from time to time, as incurred under the Incremental Incurrence Test if the Parents and the Borrower meet the applicable ratio under the Incremental Incurrence Test at such time on a Pro Forma Basis at any time subsequent to the ~~contrary~~incurrence of such Incremental Facility (or would have met such ratio, in which case, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower).

Appears in 1 contract

Sources: Second Lien Term Loan Credit Agreement (Utz Quality Foods, LLC)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to time after the ~~Closing~~ Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver a copy~~ make available to each of the Lenders), request ~~(a) one or more additional tranches of term loans (the “Incremental Term Loans”) or (b)~~ to effect one or more increases in the aggregate amount of the U.S. Revolving ~~Credit~~ Commitments ~~of any Facility~~ and/or Sterling Revolving Commitments (each such increase, a “Revolving Commitment Increase”)) from Additional Revolving Lenders; ~~provided,~~ provided that at the time of each such request and upon the effectiveness of ~~any~~ each Incremental ~~Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto)~~Revolving Facility Amendment, (iA) ~~no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for~~ the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit conditions set forth in ~~the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans~~ Section 4.02 shall be satisfied and ~~the Revolving Commitment Increases~~ (~~other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16~~B) ~~shall not exceed the Maximum Incremental Facilities Amount. (b) Any~~ such Revolving Commitment Increase shall be on the same terms ~~and~~ (other than any upfront fees) governing the U.S. Revolving Commitments or the Sterling Revolving Commitments, as applicable, pursuant to this Agreement. Notwithstanding anything to contrary herein, the ~~same documentation applicable~~ sum of (i) the aggregate principal amount of the Revolving Commitment Increases and (ii) the aggregate principal amount of all Term Commitment Increases incurred after the Effective Date shall not exceed the Incremental Cap. Each Revolving Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the Incremental Cap. (b) At any time and from time to time after the Effective Date, subject to the ~~Revolving Credit~~ terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make such notice available to each of the Lenders), request to effect one or more additional tranches of term loans hereunder or increases in the aggregate amount of the Term Commitments which shall take the form of an additional tranche of term loans hereunder (each such increase, a “Term Commitment Increase”, and the term loans made thereunder, “Incremental Term Loans”) from one or more Additional Term Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Term Facility Amendment, (~~including~~ A) the ~~maturity date~~ conditions set forth in ~~respect thereof but excluding up-front commitment or similar fees)~~Section 4.02 shall be satisfied; provided, further, that if the ~~Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The~~ proceeds of such Incremental Term Loans are being used to finance a Permitted Acquisition or similar Investment, (ax) the reference in Section 4.02(a) to the accuracy of the representations and warranties shall ~~rank pari passu~~ refer to the accuracy of the representations and warranties that would constitute Specified Representations and Specified Acquisition Agreement Representations and (y) the reference in Section 4.02(b) to Default and Event of Default shall mean the absence of a Default or ~~junior in right~~ Event of ~~payment~~ Default at the time that the main transaction agreement governing such Permitted Acquisition or Investment is executed and ~~of security with the Revolving Credit Loans~~ delivered and the absence of an Event of Default under Sections 7.01(a), (b), (h) or (i) immediately prior to and after giving effect to the incurrence of such Incremental Term Loans, (bB) the maturity date of any term loans incurred pursuant to such Term Commitment Increase shall not ~~mature~~ be earlier than the Latest Maturity Date ~~with respect to~~ then in effect and the ~~Term Loans, (c) shall not have a shorter~~ Weighted Average Life to Maturity of any term loans incurred pursuant to such Term Commitment Increase shall be no shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Term Loans, (dC) ~~shall be entitled~~ the interest rate margins and, subject to ~~share in mandatory and voluntary prepayments on a ratable~~ clause (~~or less than ratable~~B), ~~but in no event greater than ratable) basis with~~ the amortization schedule for any term loans incurred pursuant to such Term ~~Loans, and (e) shall bear interest at rates and be entitled to upfront fees as~~ Commitment Increase shall be determined by ~~Parent~~ the Borrower and the Additional Term Lenders with the applicable ~~new Lenders~~Term Commitment Increases; ~~provided, however,~~ provided that if in the event that the All-In Yield ~~for Incremental~~ of any Term ~~Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed~~ Commitment Increase exceeds the All-In Yield ~~with respect to the~~ of any then existing Term Loans by more than 50 basis points, then the interest rate margins ~~applicable to the~~ for such Term Loans shall be increased to the extent necessary so that the All-In Yield of the Term Loans is equal to the All-In Yield of such ~~excess shall be only~~ term loans incurred pursuant to such Term Commitment Increase minus 50 basis ~~points. The~~ points (“MFN Protection”) and (D) any Incremental Term ~~Loans~~ Facility Amendment shall otherwise be on the terms and pursuant to documentation to be determined by ~~Parent~~the Borrower and the Additional Term Lenders with the applicable Term Commitment Increases; ~~provided that~~provided, to however, if the ~~extent~~ covenants and events of default of such ~~terms and documentation~~ Incremental Term Loans are not consistent with the terms of outstanding Term Loans, such covenants and events of default shall not be materially more restrictive to the Borrower, when taken as a whole, than the terms of the outstanding Term Loans unless (~~except to~~ 1) Lenders under the ~~extent permitted by clauses~~ outstanding Term Loans also receive the benefit of such more restrictive terms, (a2) ~~through~~ any such provisions apply after the maturity date of the outstanding Term Loans or (e3) ~~above), they shall be~~ such provisions are reasonably satisfactory to the Administrative ~~Agent~~ Agent. Notwithstanding anything to contrary herein, the sum of (~~it being understood to~~ i) the ~~extent that any financial maintenance covenant is added for~~ aggregate principal amount of the ~~benefit~~ Term Commitment Increases and (ii) the aggregate principal amount of ~~any Incremental Term Loan or~~ all Revolving Commitment ~~Increase, no consent~~ Increases after the Effective Date shall not exceed the Incremental Cap. Each Term Commitment Increase shall be ~~required from the Administrative Agent or any Lender to the extent~~ in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such ~~financial maintenance covenant is also added for~~ amount may be less than $5,000,000 if such amount represents all the ~~benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to~~ remaining availability under the Incremental ~~Term Loans shall be determined by Parent and the lenders thereof~~Cap. (ci) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount ~~and proposed terms~~ of the relevant ~~Incremental Term Loans or~~ Revolving Commitment ~~Increases. Incremental~~ Increase in respect of the U.S. Revolving Facility or Sterling Revolving Facility or Term ~~Loans may be made, and Revolving~~ Commitment ~~Increases may be provided, by any existing Lender or by any other bank or other financial institution~~ Increase. (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheldii) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of ~~Incremental Term Loans and~~ any Revolving Commitment ~~Increases~~ Increase shall become Commitments (or in the case of a any Revolving Commitment Increase to be provided by an existing U.S. Revolving ~~Credit~~ Lender, an increase in such U.S. Revolving Lender’s ~~applicable~~ U.S. Revolving ~~Credit~~ Commitment, or in the case of any Revolving Commitment Increase to be provided by an existing Sterling Revolving Lender, an increase in such Sterling Revolving Lender’s Sterling Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each~~ such Additional Revolving Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ Revolving Commitment Increases may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Facility or, unless it agrees, be obligated to provide any Incremental Revolving Loan or Revolving Commitment Increase) or by any Additional Revolving Lender. An Incremental Revolving Facility Amendment ~~shall~~may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicableSection. The effectiveness of any Incremental Revolving Facility Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such ~~further conditions~~ Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Revolving Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). (iii) Commitments in respect of any Term Commitment Increase (the “Incremental Term Commitments”) shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as ~~Parent~~ appropriate, the other Loan Documents executed by the Borrower, each applicable Additional Term Lender and the ~~applicable Lenders and Additional Lenders shall agree~~Administrative Agent. ~~The Borrowers~~ Term Commitment Increases may ~~use~~ be provided, subject to the ~~proceeds~~ prior written consent of the ~~Incremental Term Loans and Revolving Commitment Increases for~~ Borrower (not to be unreasonably withheld), by any ~~purpose not prohibited by this Agreement. No~~ existing Lender (it being understood that no existing Lender shall have any right to participate in any Term Commitment Increase or, unless it agrees, be obligated to provide any Term Commitment Increases) or by any Additional Term Lender. An Incremental Term ~~Loans~~ Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or ~~Revolving Commitment Increases~~appropriate, ~~unless~~ in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Term Facility Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it ~~so agrees~~being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Term Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent); provided that if the proceeds of such Incremental Term Commitments are being used to finance a Permitted Acquisition or similar Investment, (x) the reference in Section 4.02(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and Specified Acquisition Agreement Representations and (y) the reference in Section 4.02(b) to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition or Investment is executed and delivered and the absence of an Event of Default under Sections 7.01(a), (b), (h) or (i) immediately prior to and after giving effect to the incurrence of such Incremental Term Commitments. (d) Upon each ~~increase in the~~ Revolving ~~Credit Commitments~~ Commitment Increase pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each U.S. Revolving ~~Credit~~ Lender or Sterling Revolving Lender, as applicable, immediately prior to such increase will automatically and without further act be deemed to have assigned to each Additional Revolving Lender providing a portion of ~~the~~ such Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding U.S. Letters of Credit or Sterling Letters of Credit, as applicable, and Swingline Loans (in the case of ~~an increase to~~ any Revolving Commitment Increase in respect of the U.S. Revolving ~~Credit Facility only), a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans~~ Facility) such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Letters of Credit and (iiB) participations hereunder in ~~Swing Line~~ Swingline Loans held by each Revolving ~~Credit~~ Lender (including each such Revolving Commitment Increase Lender) will equal ~~the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by~~ such Revolving ~~Credit~~ Lender’s Applicable Percentage. Any U.S. Revolving ~~Credit Commitment~~ Loans and ~~(b) if, on the date of such increase, there are any~~ Sterling Revolving ~~Credit~~ Loans ~~under the applicable Facility outstanding, such Revolving Credit Loans shall on or~~ outstanding immediately prior to the ~~effectiveness~~ date of such Revolving Commitment Increase that are Eurodollar Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the U.S. Revolving Lenders or Sterling Revolving Lenders, as applicable, holding such Loans immediately prior to the date of such Revolving Commitment Increase, in each case until the last day of the then-current Interest Period applicable to any such Loan, at which time it will be repaid or refinanced with new U.S. Revolving Loans or new Sterling Revolving Loans, as applicable, made pursuant to Section 2.01 in accordance with the Applicable Percentages of the U.S. Revolving Lenders or the Sterling Revolving Lenders, as applicable, after giving effect to the Revolving Commitment Increase; provided, however, that upon the occurrence of any Event of Default, each Revolving Commitment Increase Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding U.S. Revolving Loans or Sterling Revolving Loans, as applicable, of other U.S. Revolving Lenders or Sterling Revolving Lenders, as applicable, so that, after giving effect thereto, all U.S. Revolving Loans or Sterling Revolving Loans, as applicable, that are Eurodollar Loans are held by the U.S. Revolving Lenders or Sterling Revolving Lenders, as applicable, in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04; provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. If there are any ABR U.S. Revolving Loans outstanding on the date of a Revolving Commitment Increase in respect of the U.S. Revolving Commitment Facility, such Loans shall either be prepaid ~~from~~ by the ~~proceeds~~ Borrower on such date or refinanced on such date (subject to satisfaction of ~~additional~~ applicable borrowing conditions) with U.S. Revolving ~~Credit~~ Loans ~~under~~ made on such date by the ~~applicable Facility made hereunder~~ U.S. Revolving Lenders (~~reflecting~~ including the Revolving Commitment Increase Lenders) in accordance with their Applicable Percentages. In order to effect any such ~~increase~~ refinancing, (i) each Revolving Commitment Increase Lender will make ABR U.S. Revolving Loans to the Borrower by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Revolving ~~Credit Commitments)~~Commitment Increase Lender’s Revolving Commitment Increase by the aggregate amount of the U.S. Revolving Commitments (after giving effect to the Revolving Commitment Increase on such date) and (ii) such funds will be applied to the prepayment of outstanding ABR U.S. Revolving Loans held by the U.S. Revolving Lenders other than the Revolving Commitment Increase Lenders, ~~which prepayment shall~~ and transferred by the Administrative Agent to the U.S. Revolving Lenders other than the Revolving Commitment Increase Lenders, in such amounts so that, after giving effect thereto, all ABR U.S. Revolving Loans will be ~~accompanied~~ held by the U.S. Revolving Lenders in accordance with their then-current Applicable Percentages. On the date of such Revolving Commitment Increase, the Borrower will pay to the Administrative Agent, for the accounts of the U.S. Revolving Lenders receiving such prepayments, accrued and unpaid interest on the principal amounts of their U.S. Revolving ~~Credit~~ Loans being ~~prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05~~prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) ~~Notwithstanding anything~~ Upon each Term Commitment Increase pursuant to this Section, each Additional Term Lender shall make an additional term loan to the ~~contrary~~ Borrower in ~~this Section 2.14 or in Article IV or otherwise in this Agreement, so long~~ a principal amount equal to such Lender’s Term Commitment Increase. The Administrative Agent shall promptly notify each Lender as ~~no Event~~ to the effectiveness of ~~Default has occurred pursuant~~ each Term Commitment Increase and Revolving Commitment Increase and shall make available to ~~Section 8.01(a) or (f),~~ the ~~lenders providing~~ Lenders a copy of any each Incremental Term ~~Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such~~ Facility Amendment and Incremental ~~Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis~~Revolving Facility Amendment. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section ~~2.14~~ 2.20 shall supersede any provisions in Section ~~2.13~~ 2.18 or ~~10.01~~ Section 9.02 to the ~~contrary.~~contra

Appears in 1 contract

Sources: Credit Agreement (Amplify Snack Brands, INC)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrowers may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to increase the amount of Term B-23 Loans or add one or more additional tranches of term loans (any such Term B-23 Loans or additional tranche of term loans, the “Incremental Term Loans”) ~~or (b)~~ and/or one or more increases in the ~~amount of the~~ Revolving Credit Commitments ~~of any Facility~~ (~~each such increase,~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loans, the “Incremental Facilities”)~~; provided~~. Notwithstanding anything to contrary herein, ~~that upon~~ the ~~effectiveness~~ aggregate Dollar Equivalent amount of ~~any~~ all Incremental ~~Amendment referred to below~~ Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the time ~~that any such Incremental Term Loan is made (and after giving effect thereto~~of incurrence), together with the aggregate principal amount of all Permitted Credit Facilities Acquisition Debt and Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) ~~no Default or Event~~ the greater of ~~Default shall exist~~ (x) $1,600,000,0001,900,000,000 and (iiy) ~~Parent shall be in Pro Forma Compliance with Section 7.09~~ Consolidated EBITDA for the most recently ended Test Period ~~for which financial statements have been delivered pursuant~~ prior to ~~Section 6.01. Each tranche~~ such date plus (ii) the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder or any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder shall not increase the calculation of the amount under this clause (ii)) plus (iii) unlimited additional Incremental Facilities, Permitted Credit Facilities Acquisition Debt and Permitted Alternative Incremental Facilities Debt so -107- long as, after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Credit Commitments are drawn in full) and after giving effect to any Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Term Loans or Incremental Revolving Credit Commitments), the First Lien Senior Secured Leverage Ratio shall not exceed 4.004.50:1.00; provided, for the avoidance of doubt, that Incremental Facilities, Permitted Credit Facilities Acquisition Debt and ~~each Revolving Commitment Increase~~ Permitted Alternative Incremental Facilities Debt may be incurred pursuant to this clause (iii) prior to utilization of the amount set forth in clause (i) above. Each Incremental Facility shall be in an integral multiple of $5,000,000 and be in an aggregate principal amount that is not less than $~~50 million (provided~~25,000,000 in case of Incremental Term Loans or $15,000,000 in case of Incremental Revolving Credit Commitments, provided that such amount may be less than ~~$50 million~~ the applicable minimum amount if such amount represents all the remaining availability ~~under the limit~~ hereunder as set forth in above. Each Incremental Facility shall have the ~~next sentence). Notwithstanding anything to~~ same guarantees as, and be secured on a pari passu basis by the ~~contrary herein~~same Collateral securing, ~~the aggregate amount~~ all of the ~~Incremental Term Loans and the Revolving Commitment Increases (~~other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities AmountObligations under this Agreement. (b) Any Incremental Term Loans (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B-23 Loans, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrowers and the lenders thereunder (provided that, except in the case of Refinancing Term Loans or other Incremental Term Loans in an aggregate principal amount that does not exceed the greater of (x) $1,900,000,000 and (y) Consolidated EBITDA for the most recently ended Test Period prior to such date), if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing the Term B-23 Loans (but excluding customary arrangement or commitment fees payable to any arranger, bookrunner or agent or their Affiliates in connection therewith)) relating to any Term B-23 Loans as such Incremental Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate relating to such Term B-23 Loans shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Incremental Term Loans minus 0.50%; provided that, if the Incremental Term Loans include an interest rate floor greater than the applicable interest rate floor under such Term B-23 Loans, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under such Term B-23 Loans shall be required, but only to the extent an increase in the interest rate floor in such Term B-23 Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but -108- not the Applicable Rate) applicable to such Term B-23 Loans shall be increased to the extent of such differential between interest rate floors), (iii) any Incremental Term Loan (other than a Refinancing Term Loan) shall not have a final maturity date earlier than the Maturity Date applicable to the Term B-2 Loans3 Loans, unless the amount of such Incremental Term Loans does not, at the time of incurrence, exceed the then remaining Earlier Maturing Basket Amount (in which case, such Incremental Term Loans may have an earlier maturity date so long as such maturity date is not prior to the Maturity Date of the Revolving Credit Commitments then in effect), (iv) any Incremental Term Loan (other than a Refinancing Term Loan) shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Term B-2 Loans3 Loans unless the amount of such Incremental Term Loans does not, at the time of incurrence, exceed the then remaining Earlier Maturing Basket Amount (in which case, such Incremental Term Loans may have a shorter Weighted Average Life to Maturity so long as such Weighted Average Life to Maturity is not less than three (3) years) and (v) shall have the same terms as the Term B-23 Loans or such terms as are reasonably satisfactory to the Administrative Agent. (c) Any Revolving Credit Commitment Increase shall (i) have the same maturity date as the Revolving Credit Commitments, (ii) require no scheduled amortization or mandatory commitment reduction prior to the final maturity of the Revolving Credit Commitments and (iii) be on the same terms and pursuant to the same documentation applicable to the Revolving Credit ~~Facility~~ Commitments. Any Additional Revolving Credit Commitments (~~including~~ i) shall have interest rate margins and amortization schedule as determined by the ~~maturity date~~ Borrowers and the lenders thereunder (provided that, if such Additional Revolving Credit Commitments are incurred prior to the first anniversary of the Closing Date, except in ~~respect thereof~~ the case of Refinancing Revolving Credit Commitments, if the Applicable Rate for Loans thereunder (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Additional Revolving Credit Commitments (but excluding ~~up-front~~ customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Additional Revolving Credit Commitments exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar ~~fees~~fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all Lenders for Revolving Credit Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)~~; provided~~) relating to the Revolving Credit Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate ~~with respect~~ relating to the Revolving Credit ~~Facility may~~ Loans shall be ~~increased if necessary~~ adjusted to be ~~consistent~~ equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with ~~that required by the~~ original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Additional Revolving Credit Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Additional Revolving Credit Commitments minus 0.50%; provided that, if the Additional Revolving Credit Commitments include an interest rate floor greater than the applicable interest rate floor under the Revolving ~~Commitment Increase. The Incremental Term Loans (a)~~ Credit Loans, such differential between interest rate floors shall ~~rank pari passu or junior in right~~ be equated to the Applicable Rate for purposes of ~~payment and of security with~~ determining whether an increase to the -109- Applicable Rate under the Revolving Credit Loans shall be required, but only to the extent an increase in the interest rate floor in the Revolving Credit Loans would cause an increase in the interest rate then in effect thereunder, and in such case the ~~Term Loans~~interest rate floor (but not the Applicable Rate) applicable to the Revolving Credit Loans shall be increased to the extent of such differential between interest rate floors), (bii) which are Refinancing Revolving Credit Commitments shall not ~~mature~~ have a final maturity date earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the ~~Term Loans~~ Revolving Credit Commitments being refinanced thereby and (iii) shall ~~be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on~~ have the same terms ~~and pursuant to documentation to be determined by Parent; provided that, to~~ as the ~~extent~~ Revolving Credit Commitments or such terms ~~and documentation~~ as are ~~not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be~~ reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, 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) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereofAgent. (cd) Each notice from ~~Parent~~ the Borrowers pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or ~~Revolving Commitment Increases.~~ other Person that elects to extend Incremental Term Loans ~~may~~ or Incremental Revolving Credit Commitments shall be ~~made~~reasonably satisfactory to the Borrowers and the Administrative Agent (any such bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution (any such other bank or other financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the ~~applicable Borrower~~Borrowers, ~~each Lender agreeing to provide~~ such ~~Commitment, if any, each~~ Additional Lender, ~~if any~~the Administrative Agent and, in the case of any Incremental Revolving Credit Commitments, each L/C Issuer and the ~~Administrative Agent~~Swing Line Lender; provided that no Incremental Term Loans may be provided by a Sponsor Affiliated Lender unless, after giving effect to such Incremental Term Loans, the aggregate Outstanding Amount of all Term Loans that are held by Sponsor Affiliated Lenders (other than Affiliated Debt Funds) does not exceed 25% of the aggregate Outstanding Amount of the Term Loans then outstanding. ~~The~~ For the avoidance of doubt, no L/C Issuer or Swing Line Lender is required to act as such for any Additional Revolving Credit Commitments unless they so consent. No Incremental Facility Amendment ~~shall, without~~ shall require the consent of any Lenders other than the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in Additional Lenders with respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such ~~further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the~~ Incremental ~~Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement~~Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving ~~Commitment Increases~~Credit Commitments, unless it so agrees. . Commitments in respect of any Incremental Term Loans or Incremental Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (deach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) if the proceeds of such Incremental Facility are to be used, in whole or in part, to finance a Limited Condition Acquisition, (1) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (2) Section 4.02(b) shall not apply). The proceeds of any Incremental Term Loans will be used only for general corporate purposes (including, without limitation, Permitted Acquisitions). Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ~~▇▇▇▇▇▇~~Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Commitment Increase~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit ~~Commitment and (b) if~~Commitment. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans ~~under~~ are outstanding at the ~~applicable Facility outstanding, such~~ time any Incremental Revolving Credit ~~Loans shall on or prior to~~ Commitments are established, the Revolving Credit Lenders immediately after effectiveness of such ~~Revolving Commitment Increase be prepaid from the proceeds of additional~~ Incremental Revolving Credit ~~Loans under the applicable Facility made hereunder (reflecting~~ Commitments shall purchase and assign at par such ~~increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ amounts of the Revolving Credit Loans ~~being prepaid and any reasonable and documented out-of-pocket costs incurred by any~~ outstanding at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 3.05~~holds its Applicable Percentage of all Revolving Credit Loans outstanding immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Restaurant Brands International Inc.)

Incremental Credit Extensions. (a) ~~Parent may, at~~ At any time or and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(a)~~ to add one or more additional tranches of ~~term~~ loans (the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”) (in each case, including incremental delayed draw term loan facilities (the “Incremental Delayed Draw Term Loan Facilities”)) or ~~(b)~~ one or more increases in the ~~amount of the~~ Revolving Credit Commitments ~~of any Facility~~ (~~each such increase~~the “Incremental Revolving Commitments”; together with the Incremental Term Loans, a the Incremental Term Loan Increases and Incremental Delayed Draw Term Loan Facilities, the “~~Revolving Commitment Increase~~Incremental Facilities”)~~; provided~~. Notwithstanding anything to the contrary herein, ~~that upon~~ unlimited Incremental Facilities shall be permitted so long as, after giving Pro Forma Effect to the ~~effectiveness~~ making of ~~any~~ the Incremental ~~Amendment referred to below and at~~ Term Loans or the ~~time~~ establishment of Incremental Revolving Commitments (assuming that any such Incremental ~~Term Loan is made (~~Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect ~~thereto), (i) no Default or Event of Default shall exist~~ to any Specified Transaction consummated in connection therewith and ~~(ii) Parent shall be in~~ all other appropriate Pro Forma ~~Compliance with~~ Adjustments, the Net Leverage Ratio does not exceed 0.50:1.00 less than the maximum Net Leverage Ratio permitted by the Financial Covenant in Section ~~7.09~~ 7.10(a) for the most recently ended Test Period for which financial statements have been delivered pursuant to Section ~~6.01. Each tranche of~~ 6.01(a) or (b) (collectively, the “Incremental ~~Term Loans~~ Facilities Cap”); provided that Incremental Facilities and ~~each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount~~ Permitted Alternative Incremental Facilities Debt may be ~~less than $50 million if such amount represents all remaining availability~~ incurred under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities ~~Amount~~Cap as selected by the Borrower in its sole discretion. (b) ~~Any~~ The Incremental Facilities are subject to the following terms and conditions: (i) each Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Obligations hereunder; (ii) no existing Lender will be required to participate in any such Incremental Facility without its consent; (iii) no Default or Event of Default would exist after giving effect thereto, subject to customary “SunGard” or certain fund conditionality in the case of Incremental Facilities issued in connection with a permitted acquisition or similar investments, if agreed by the Lenders providing such Incremental Facility; (iv) the maturity date of any Incremental Term Loans shall be no earlier than the Maturity Date of the Term A-1 Loans and the Term A-2 Loans, and the Weighted Average Life to Maturity of such Incremental Term Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term A-1 Loans and the Term A-2 Loans; (v) each Incremental Facility incurred pursuant to clause (a) above shall be subject to Pro Forma Compliance; (vi) in the case of (A) Incremental Revolving ~~Commitment Increase~~ Commitments, the maturity date of such Incremental Revolving Commitments shall be the same as the Maturity Date of the Revolving Credit Facility, such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility and the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility (~~including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided~~it being understood that, if required to obtain such Incremental Revolving Commitments, the ~~Applicable Rate with respect to~~ pricing, interest rate margins, rate floors and undrawn fees on the Revolving Credit Facility may be increased ~~if necessary to be consistent with that required by the lenders providing~~ for all Revolving Credit Lenders of the Revolving ~~Commitment Increase. The~~ Credit Facility, but additional upfront or similar fees may be payable to the Lenders participating in the Incremental Revolving Commitments without any requirement to pay such amounts to any existing Revolving Credit Lenders) and (B) Incremental Term Loan Increases, the maturity date of such Incremental Term Loan Increases shall be the same as the Maturity Date of the applicable Class of Term Loans or Incremental Term Loans, and such Incremental Term Loan Increases shall be on the exact same terms and pursuant to the exact same documentation applicable to the applicable Class of Term Loans or Incremental Term Loans; (vii) [reserved]; (viii) the pricing, currency, interest rate margins and (subject to clause (iv)) amortization schedule applicable to any Incremental Term Loans ~~(a)~~ shall ~~rank pari passu or junior in right of payment and of security with~~ be determined by the ~~Revolving Credit Loans~~ Borrower and the lenders thereunder; (ix) any Incremental Term ~~Loans,~~ Loan may participate (bA) ~~shall not mature earlier than the Maturity Date with respect to the~~ in any voluntary prepayment of Term ~~Loans, (c~~Loans as set forth in Section 2.05(a) ~~shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments~~ on a ~~ratable (~~pro rata basis, greater than pro rata basis or less than ~~ratable, but~~ a pro rata basis with the then-existing Term Loans and (B) in ~~no event greater than ratable~~any mandatory prepayment of Term Loans as set forth in Section 2.05(b) on a pro rata basis (to the extent secured on a pari passu basis with the Term ~~Loans~~Loans made on the Closing Date), ~~and (e) shall bear interest at rates and be entitled~~ greater than pro rata basis with respect to ~~upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for~~ prepayments of any such Incremental Term Loans ~~that are incurred under this Section 2.14 on~~ with the proceeds of any Refinancing Term Loans or less than a ~~date that is prior~~ pro rata basis with the then-existing Term Loans to the ~~twelve~~ extent provided in such Sections; (12x) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The [reserved]; (xi) any Incremental Term Loans shall ~~otherwise~~ be on terms and pursuant to documentation to be ~~determined by Parent~~determined; provided that, to the extent such terms and documentation are not consistent with the Term A-1 Loans and the Term A-2 Loans (except to the extent permitted by ~~clauses~~ clause (aiv), (viii) ~~through~~ or (eix) above), they shall be reasonably satisfactory to the Administrative Agent (excluding pricing, prepayment or redemption terms, call-protection and prepayment premiums and “most favored nation” provisions but in each case, subject to clause (ix) above); provided, further, that (A) the terms and conditions of such Incremental Term Loans (excluding pricing and optional prepayment or redemption terms) do not contain covenants (including financial maintenance covenants) or events of default, taken as a whole, that are materially more restrictive than (or in addition to) those contained in this Agreement (as determined in consultation with the Borrower in good faith) (except for covenants or other provisions applicable only to periods after the Latest Maturity Date) (it being understood that to the extent ~~that~~ any ~~financial maintenance~~ covenant is added for the benefit of ~~any~~ such Incremental Term ~~Loan or Revolving Commitment Increase~~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 each Facility); and (xii) each Incremental 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 in the case of any ~~corresponding existing Term Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the~~ Incremental Term Loans ~~shall~~ or Incremental Term Loan Increases or $5,000,000 in the case of any Incremental Revolving Commitments; provided that such amount may be ~~determined by Parent and~~ less than the ~~lenders thereof~~applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. (c) Each notice from ~~Parent~~ the Borrower pursuant to this Section ~~2.14~~ shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans or Revolving Commitment Increases.~~ Loans, Incremental Term ~~Loans may be made~~Loan Increases and/or Incremental Revolving Commitments. Any additional bank, ~~and Revolving Commitment Increases may be provided~~financial institution, ~~by any~~ existing Lender or ~~by any~~ other ~~bank or other financial institution~~ Person that elects to provide the applicable Incremental Facility shall be reasonably satisfactory to the Borrower and, to the extent the Administrative Agent would have a consent right to an assignment to such Person under Section 10.07, the Administrative Agent (any such ~~other bank~~ bank, financial institution, existing Lender or other ~~financial institution~~ Person being called an “Additional Lender”~~); provided~~) and, ~~that the Administrative Agent~~if not already a Lender, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become ~~Commitments (or in the case of~~ a ~~Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment)~~ Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~applicable~~ Borrower, ~~each~~ such Additional Lender ~~agreeing to provide such Commitment, if any, each Additional Lender, if any,~~ and the Administrative Agent. ~~The~~ No Incremental Facility Amendment ~~shall~~shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of ~~the Agents or the~~ any other Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and Parent~~ Agent, to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Facility Amendment ~~shall~~ shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such ~~further conditions as Parent~~ Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) the ~~applicable Lenders~~ Incremental Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section 4.02(a) and ~~Additional Lenders shall agree. The Borrowers may use~~ (z) to the extent the proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, the conditions in Section 4.02 may be subject to customary “SunGard” limitations (or, for an acquisition of a foreign entity, “certain funds” limitations)). The proceeds of any Incremental Term Loans and ~~Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any~~ Incremental Term ~~Loans or Revolving Commitment Increases~~Loan Increases will be used for general corporate purposes (including Permitted Acquisitions, ~~unless it so agrees. (d)~~ Investments, Restricted Payments and Capital Expenditures). Upon each increase in the Revolving Credit Commitments pursuant to this ~~Section 2.14~~Section, ~~(a)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment ~~Increase~~ (each a “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act be deemed to have ~~assumed (in the case of an increase to the Revolving Credit Facility only)~~assumed, a portion of such Revolving Credit ▇L▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit ~~and Swing Line Loans~~ such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding ~~(i)~~ participations hereunder in Letters of Credit ~~and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender)~~ will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit ~~Lender~~L▇▇▇▇▇’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Phibro Animal Health Corp)

Appears in 1 contract

Sources: Amendment No. 1 to Credit Agreement (Phibro Animal Health Corp)

Common use of Incremental Credit Extensions Clause in Contracts