Incremental Facilities. (a) The Borrower may, by written notice to Administrative Agent, elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement. (e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%. (f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement. (g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof). (i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin
Appears in 3 contracts
Sources: Credit Agreement (SailPoint Parent, LP), Credit Agreement (SailPoint Parent, LP), Credit Agreement (SailPoint Parent, LP)
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent, elect to Agent request the establishment of (i) one or more (x) additional tranches Classes of term loans or increases in Term Loans additional term loans of the same Class of any existing Class of term loans (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or (yii) additional tranches of revolving loans one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments (the “New Additional/Replacement Revolving Credit Commitments,” and, together with the New Incremental Term Loan CommitmentsLoans and the Incremental Revolving Credit Commitment Increases, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, by an aggregate amount not in excess of subject to Section 1.11, at the Maximum time that any such Incremental Facilities Amount Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior proviso to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (ab) of the definition of Maximum Incremental Facilities Amountbelow, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments(or, as applicable (and, otherwisein the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition, no Event of Default under Section 12.1 11.1 or Section 12.5 11.5) shall exist have occurred and be continuing.
(b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (it being understood that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and, subject to the proviso at the end of this Section 2.14(b), the aggregate amount of (x) the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to Section 1.11, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of such Test Period, that is no greater than 5.00:1.00 (this clause (B), the “Incremental Ratio Debt Amount” and, together with the Incremental Base Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be Incurred without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in the first part of this 2.14(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans on the date of Incurrence of such Incremental Term Loans (or substantially concurrently therewith) are used to either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 5.2(a)(i) or (y) permanently reduce the Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments in accordance with the procedures set forth in Section 5.2(e)(ii) (and any such Incremental Term Loans shall be deemed to have been Incurred pursuant to this proviso), and (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments, Extended Revolving Credit Commitments or other Additional/Replacement Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided (and any such Additional/Replacement Revolving Credit Commitments shall be deemed to have been Incurred pursuant to this proviso).
(i) The Incremental Term Loans (A) shall rank equal in right of payment and security with the Initial Term Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties, (B) shall not mature earlier than the Initial Term Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, AHYDO Catch-Up Payments, funding discounts, original issue discounts and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided that, in the event that the Effective Yield for any Incremental Term Loans (other than Incremental Term Loans (w) Incurred pursuant to clause (B) of Section 2.14(b), (x) established pursuant to the proviso of Section 2.14(b), (y) having a final maturity date that is more than two years after the Initial Term Loan Maturity Date or (z) Incurred in connection with a Permitted Acquisition (clauses (w), (x), (y) and (z), collectively, the “MFN Exceptions”)), is greater than the Effective Yield for the Initial Term Loans by more than 0.50%, then the Applicable Margins for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.50% (this proviso, the “MFN Protection”); provided, further, that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Eurodollar Rate, for purposes of calculating the applicable increase (if any) in the Applicable Margins for the Initial Term Loans in the immediately preceding proviso, the Applicable Margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving pro forma effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable Reference Rate; and (E) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that (x) except with respect to matters contemplated by clauses (B), (C) and (D) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility.
(ii) The Incremental Revolving Credit Commitment Increase shall be treated the same as the Class of Revolving Credit Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase (without any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) The Additional/Replacement Revolving Credit Commitments (A) shall rank equal in right of payment and security with the Revolving Credit Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties, (B) shall not mature earlier than the Revolving Credit Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, AHYDO Catch-Up Payments, original issue discounts, maturity, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and the lenders of such commitments; provided that, in the event that the Effective Yield for any Additional/Replacement Revolving Credit Loans (other than Additional/Replacement Revolving Credit Loans under Loans under any Additional/Replacement Revolving Credit Commitments (w) incurred pursuant to Section 2.14(b)(B), (x) established pursuant to the proviso of Section 2.14(b), (y) having a final maturity date that is more than two years after the Revolving Credit Maturity Date or (z) Incurred in connection with a Limited Condition TransactionPermitted Acquisition), at is greater than the time of such Increased Amount Date and at Effective Yield for the time a definitive agreement is entered into in respect of such Limited Condition TransactionRevolving Credit Loans by more than 0.50%, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) then the New Loan Commitments Applicable Margins for the Revolving Credit Loans shall be effected pursuant increased to one or more Joinder Agreements executed the extent necessary so that the Effective Yield for the Revolving Credit Loans are equal to the Effective Yield for the Additional/Replacement Revolving Credit Loans minus 0.50%; (D) shall contain borrowing, repayment and delivered termination of Commitment procedures as determined by the Borrower and the lenders of such commitments, (E) may include provisions relating swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to the Swingline Loans and Letters of Credit with respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (F) may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and (E) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Credit Commitments may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such lenders providing Previously Absent Financial Maintenance Covenant for the New Loan benefit of each Credit Facility (provided, further, however, that, if the applicable Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Financial Maintenance Covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)).
(d) Each notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. Incremental Term Loans may be made, and each of which shall be recorded in the Register Incremental Revolving Credit Commitment Increases and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Additional/Replacement Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effectedprovided, subject to the satisfaction prior written consent of the foregoing terms and conditionsBorrower (not to be unreasonably withheld or delayed), by any existing Lender (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each it being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation to make a New Revolving Credit Commitment (eachportion of any Incremental Term Loan, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders no existing Lender with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under will have any obligation to provide a New portion of any Incremental Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans Increase and (ii) each New Revolving Loan Lender shall become a no existing Lender with respect to the New a Revolving Credit Commitment and all matters relating theretowill have an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, the Swingline Lender and each the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s or Additional Lender’s providing such New Incremental Revolving Credit Commitment to the extent Increases or Additional/Replacement Revolving Credit Commitments if such consent, if any, consent would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender or Additional Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Commitments in respect of Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable an Incremental Revolving Credit Maturity Date of each Series shall Commitment Increase to be no earlier than the provided by an existing Lender with a Revolving Credit Maturity DateCommitment, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New increase in such Lender’s applicable Revolving Credit Commitments are securedCommitment) under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, are not secured as appropriate, the other Credit Documents, executed by a Lien on any assets of Holdings or its Subsidiaries other than Holdings, the Collateral; providedBorrower, that any New Revolving Credit Loans that are secured by a Lien on each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Administrative Agent. The Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provision provisions of this Section 2.14, including, without limitation, any amendments with respect to alternative currency (including (i) in connection with the establishment of any New an Incremental Revolving Credit Commitments denominated in Commitment Increase, to reallocate Revolving Credit Exposure on a currency other than Dollarspro rata basis among the relevant Revolving Credit Lenders, any amendments that (ii) to increase the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans Effective Yield of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such the applicable Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the extent necessary in order to ensure that any applicable Class of Incremental Term Loans are “fungible” with such existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
and/or (i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extendediii) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all add or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (extend “AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvinsoft ca
Appears in 3 contracts
Sources: Credit Agreement (MultiPlan Corp), Credit Agreement (MultiPlan Corp), Incremental Agreement (MultiPlan Corp)
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent, elect to Agent request the establishment of (i) one or more (x) additional tranches Classes of term loans or increases in Term Loans additional term loans of the same Class of any existing Class of term loans (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or (yii) additional tranches of revolving loans one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments (the “New Additional/Replacement Revolving Credit Commitments,” and, together with the New Incremental Term Loan CommitmentsLoans and the Incremental Revolving Credit Commitment Increases, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, by an aggregate amount not in excess of subject to Section 1.11, at the Maximum time that any such Incremental Facilities Amount Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior proviso to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (ab) of the definition of Maximum Incremental Facilities Amountbelow, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments(or, as applicable (and, otherwisein the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition or similar Investment, no Event of Default under Section 12.1 11.1 or Section 12.5 11.5) shall exist have occurred and be continuing.
(b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (it being understood that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and, unless otherwise agreed by the Borrower and the Administrative Agent, in minimum increments of $1,000,000 in excess thereof), and, subject to the proviso at the end of this Section 2.14(b), following the SecondThird Incremental Agreement Effective Date the aggregate amount of (x) the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to Section 1.11, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of such Test Period, that is no greater than either (x) 5.24.95:1.00 or (y) if Incurred in connection with an Acquisition or similar Investment, no greater than the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such Acquisition or similar Investment (this clause (B), the “Incremental Ratio Debt Amount” and, together with the Incremental Base Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be Incurred without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in the first part of this 2.14(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of Incurrence of such Incremental Term Loans (or substantially concurrently therewith) to either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 5.2(a)(i) or (y) permanently reduce the Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments in accordance with the procedures set forth in Section 5.2(e)(ii) (and any such Incremental Term Loans shall be deemed to have been Incurred pursuant to this proviso), and (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the minimums set forth in the first sentence of this 2.14(b) and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments, Extended Revolving Credit Commitments or other Additional/Replacement Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided (and any such Additional/Replacement Revolving Credit Commitments shall be deemed to have been Incurred pursuant to this proviso).
(i) The Incremental Term Loans (A) shall rank equal in right of payment and security with the Initial Term Loans and the 2019 Incremental Term Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis, (B) shall not mature earlier than the Initial Term Loan Maturity Date or the 2019 Incremental Term Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans or the remaining 2019 Incremental Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, AHYDO Catch-Up Payments, funding discounts, original issue discounts, currency denomination and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided that, during the period commencing on the Closing Date and ending on first anniversary of the Closing Datewith respect of the 2019 Incremental Terms Loans, in the event that the Effective Yield for any Incremental Term Loans (other than Incremental Term Loans (x) Incurred pursuant to clause (B) of Section 2.14(b), (y) established pursuant to the proviso of Section 2.14(b) or (zy) Incurred in connection with an Acquisition (clauses (x), and (y) and (z), collectively, the “MFN Exceptions”)), is greater than the Effective Yield for the Initial2019 Incremental Term Loans by more than 0.50%, then the Applicable Margins for the Initial2019 Incremental Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial2019 Incremental Term Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.50% (this proviso, the “MFN Protection”); provided, further, that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Eurodollar Rate, for purposes of calculating the applicable increase (if any) in connection with a Limited Condition Transactionthe Applicable Margins for the Initial2019 Incremental Term Loans in the immediately preceding proviso, at the time Applicable Margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving pro forma effect to any increases required pursuant to the immediately succeeding proviso) of such Increased Amount Date Incremental Term Loans less the then applicable Reference Rate; and at (E) may otherwise have terms and conditions different from those of the time a definitive agreement is entered into in Initial Term Loans or the 2019 Incremental Term Loans, as applicable; provided that (x) except with respect of such Limited Condition Transactionto matters contemplated by clauses (B), there is no Event of Default under Section 12.1 or Section 12.5(C) and (D) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility.
(ii) the New Loan Commitments The Incremental Revolving Credit Commitment Increase shall be effected pursuant treated the same as the Class of Revolving Credit Commitments being increased (including with respect to one maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and additional upfront or more Joinder Agreements executed similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase (without any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) The Additional/Replacement Revolving Credit Commitments (A) shall rank equal in right of payment and delivered security with the Revolving Credit Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis, (B) shall not mature earlier than the Revolving Credit Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, currency denomination, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and the lenders of such commitments; provided that, during the period commencing on the Closing Date and ending on first anniversary of the Closing Date, in the event that the Effective Yield for any Additional/Replacement Revolving Credit Loans (other than Additional/Replacement Revolving Credit Loans under any Additional/Replacement Revolving Credit Commitments (x) incurred pursuant to clause (B) of Section 2.14(b), (y) established pursuant to the proviso of Section 2.14(b) or (z) Incurred in connection with an Acquisition or similar Investment) is greater than the Effective Yield for the Revolving Credit Loans by more than 0.50%, then the Applicable Margins for the Revolving Credit Loans shall be increased to the extent necessary so that the Effective Yield for the Revolving Credit Loans are equal to the Effective Yield for the Additional/Replacement Revolving Credit Loans minus 0.50%; (D) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments, (E) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to the Swingline Loans and Letters of Credit with respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (F) may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and (E) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Credit Commitments may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such lenders providing Previously Absent Financial Maintenance Covenant for the New Loan benefit of each Credit Facility (provided, further, however, that, if the applicable Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Financial Maintenance Covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)).
(d) Each notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount, currency denomination and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. Incremental Term Loans may be made, and each of which shall be recorded in the Register Incremental Revolving Credit Commitment Increases and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Additional/Replacement Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effectedprovided, subject to the satisfaction prior written consent of the foregoing terms and conditionsBorrower (not to be unreasonably withheld or delayed), by any existing Lender (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each it being understood that no existing Lender with an Initial Term Loan Commitment or 2019 Incremental Term Loan Commitment will have an obligation to make a New Revolving Credit Commitment (eachportion of any Incremental Term Loan, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders no existing Lender with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under will have any obligation to provide a New portion of any Incremental Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans Increase and (ii) each New Revolving Loan Lender shall become a no existing Lender with respect to the New a Revolving Credit Commitment and all matters relating theretowill have an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, the Swingline Lender and each the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s or Additional Lender’s providing such New Incremental Revolving Credit Commitment to the extent Increases or Additional/Replacement Revolving Credit Commitments if such consent, if any, consent would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender or Additional Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Commitments in respect of Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable an Incremental Revolving Credit Maturity Date of each Series shall Commitment Increase to be no earlier than the provided by an existing Lender with a Revolving Credit Maturity DateCommitment, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New increase in such Lender’s applicable Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior Commitment) under this Agreement pursuant to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of an amendment (an “Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g”) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and and, as appropriate, the other Credit Documents as may be necessary or appropriateDocuments, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposesexecuted by Holdings, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit CommitmentsBorrower, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended RevolvinLend
Appears in 2 contracts
Sources: Incremental Agreement to Credit Agreement (Snap One Holdings Corp.), Incremental Agreement to Credit Agreement (Snap One Holdings Corp.)
Incremental Facilities. (a) The Borrower mayAt any time from and after the Closing Date, by written notice to Administrative Agent, elect to at the request of Borrowers and in the establishment sole discretion of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments theretoLender, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Revolver Commitments of any Class (and the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), Maximum Revolver Amount may be increased by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate for each such increase of the Revolver Commitments and the Maximum Revolver Amount not less than to exceed the Available Increase Amount (each such increase, an “Increase”); provided, that, after giving effect to each such Increase, the Revolver Commitments and the Maximum Revolver Amount shall in no event exceed $50,000,000. Any Increase shall be in an amount of at least $5,000,000 individually (or such lesser amount as (x) and integral multiples of $1,000,000 in excess thereof. In no event may be approved by the Administrative Agent or (y) shall constitute the difference between Revolver Commitments and the Maximum Incremental Facilities Revolver Amount and all such New Loan Commitments obtained be increased pursuant to this Section 2.14 on or prior to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 more than three occasions during the term of this Agreement. .
(b) In each casethe event that Lender, in its sole discretion, elects to increase the Revolver Commitments and the Maximum Revolver Amount in accordance with Section 2.14(a) above, any such New Loan Commitments Increase shall become effective as of be subject to, among other conditions precedent, the applicable Increased Amount Date; provided that following:
(i) with respect to New Loan Commitments incurred in reliance of clause (a) each of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable conditions precedent set forth in Section 3.2 are satisfied,
(and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that ii) in connection with a Limited Condition Transactionany Increase, at the time if any Loan Party or any of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transactionits Subsidiaries owns or will acquire any Margin Stock, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments Borrowers shall be effected pursuant deliver to one or more Joinder Agreements Lender an updated Form U-1, duly executed and delivered by the Borrower and Administrative Agent and Borrowers, together with such lenders providing the New Loan Commitmentsother documentation as Lender shall reasonably request, and each in order to enable Lender to comply with any of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shallunder Regulations T, at the election U or X of the Borrower and agreed to by Lenders providing such New Term Loan CommitmentsBoard of Governors, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.and
(biii) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject Borrowers have delivered to the satisfaction of the foregoing terms and conditions, Lender updated pro forma Projections (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(bapplicable Increase) for an assignment the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the 12 months (on a month-by-month basis) immediately following the proposed date of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lenderthe applicable Increase.
(c) On Unless otherwise specifically provided herein, all references in this Agreement and any Increased Amount Date on which any New Term other Loan Commitments of any Series are effectiveDocument to Revolving Loans shall be deemed, subject unless the context otherwise requires, to include Revolving Loans made pursuant to the satisfaction of the foregoing terms increased Revolver Commitments and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan Maximum Revolver Amount pursuant to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant theretothis Section 2.14.
(d) The terms Revolving Loans, Revolver Commitments, and provisions of the New Term Loans Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and New Term Loan Commitments of any Series Maximum Revolver Amount under, and shall be on terms as determined by entitled to all the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Datebenefits afforded by, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriateLoan Documents, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, includingand shall, without limitationlimiting the foregoing, benefit equally and ratably from any amendments with respect guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by ▇▇▇▇▇▇ to alternative currency in connection with ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit new Revolver Commitments and (2) no Extended RevolvinMaximum Revolver Amount.
Appears in 2 contracts
Sources: Credit Agreement (Elmet Group Co.), Credit Agreement (Elmet Group Co.)
Incremental Facilities. (ai) The Subject to the terms and conditions set forth in this Agreement, the Borrower mayshall have the right, by from time to time upon at least ten (10) Business Days’ prior written notice to the Administrative AgentAgent (or such shorter period of notice as the Administrative Agent may agree in its sole discretion), elect to request (I) increase the establishment of one or more Aggregate Revolving Commitment Amount, (xII) additional tranches of term loans or increases in Term Loans of any Class (increase the commitments thereto, the “New Aggregate Term Loan Commitments”)A Commitment Amount, and/or (yIII) increase the Aggregate DDTL Commitment Amount, and/or (IV) establish one (1) or more additional tranches term loans of revolving loans a separate Class, subject, however, in any such case of the foregoing clauses (e)(i)(I) through (e)(i)(IV), to the satisfaction of each of the following conditions precedent:
(A) the aggregate original principal or increases committed amount of all such Incremental Facilities, taken together, shall not exceed the Incremental Cap in Revolving Credit Commitments effect at the time of the establishment and/or incurrence (as applicable) of any Class Incremental Facility;
(the “New Revolving Credit Commitments” B) each Incremental Facility shall be in a minimum principal or committed amount of Five Million Dollars ($5,000,000), and, together with the New Term Loan Commitmentsif greater, the “New Loan Commitments”), by in an aggregate amount not integral multiple of Five-Hundred Thousand Dollars ($500,000) in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually thereof (or such lesser amount amounts as the Administrative Agent may agree in its sole discretion);
(xC) may the establishment and incurrence (as applicable) of each Incremental Facility shall be approved contingent upon the receipt by the Administrative Agent of:
(I) additional Commitments of the applicable Class in a corresponding amount to such requested increase in the aggregate amount of Commitments of such Class, or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Term Loan Commitments obtained on or prior in a corresponding amount to such date); provided that the aggregate original principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during such requested Incremental Term Loan of a separate Class, in each case of the term foregoing of this clause (e)(i)(C)(I), from either existing Lenders or from one (1) or more other financial institutions (each such other financial institution, an “Additional Incremental Lender”) that:
(1) qualifies as an Eligible Assignee; and (2) is approved (such approval not to be unreasonably withheld, conditioned or delayed) by the Administrative Agent and, in the case of any increased or new Commitment in respect of an Incremental Revolver Increase, each of the Issuing Bank and the Swingline Lender, or from a combination of existing Lenders and/or Additional Incremental Lenders; and
(II) documentation from each existing Lender or Additional Incremental Lender providing a Commitment in respect of such Incremental Facility, in form and substance reasonably acceptable to the Administrative Agent, evidencing its: (I) agreement to provide such Commitment; and (II) acceptance of its obligations as a Lender under this Agreement. In ;
(D) the Administrative Agent shall have received all customary officer’s certificates, legal opinions and other documents (including, without limitation, resolutions of the board of directors or managers (or equivalent governing body) of each caseCredit Party and customary opinions of counsel to the Credit Parties, if required to be provided by the existing Lenders and Additional Incremental Lenders providing Commitments in respect of such New Loan Commitments Incremental Facility) it may reasonably request relating to the corporate, limited liability company or other necessary authority for the establishing of such Incremental Facility and the validity thereof, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall become effective have delivered to the Administrative Agent a certificate, dated as of the applicable Increased Amount Date; provided that date of establishment and/or incurrence (i) with respect to New Loan Commitments incurred in reliance of clause (aas applicable) of such Incremental Facility, and duly executed by an Authorized Officer of the definition Borrower, certifying, on behalf of Maximum Incremental Facilities Amountthe Borrower and each other Credit Party, no Event of Default shall exist on such Increased Amount Date that, both immediately before and immediately after giving effect to the establishment and/or incurrence (as applicable) of such New Loan CommitmentsIncremental Facility and the consummation of any related transactions (including, as applicable without limitation, any Acquisitions) substantially contemporaneously in connection therewith:
(and, otherwise, I) no Default or Event of Default under Section 12.1 or Section 12.5 shall exist have occurred and be continuing;
(II) all representations and warranties of each Credit Party set forth in the Credit Documents (including, without limitation, the representations and warranties of each Credit Party set forth in Article 6) are true and correct, in all material respects (or, if such representation and warranty is qualified by materiality or Material Adverse Effect, in all respects), on, and as of, such date, except to the extent that such representations and warranties specifically relate to an earlier date, in which case, they are true and correct, in all material respects (or, if such representation and warranty is qualified by materiality or Material Adverse Effect, in all respects), as of such earlier date; providedand
(III) the Credit Parties are in compliance, furtheron a Pro Forma Basis, that with each of the Financial Covenants;
(F) the Collateral Agent shall have received such amendments to the Collateral Documents as the Collateral Agent shall request in connection order to cause the Collateral Documents to secure the Obligations (in a manner consistent with a Limited Condition Transaction, the terms of the Collateral Documents as in effect immediately prior to the date of establishment and/or incurrence (as applicable) of such Incremental Facility) after giving effect to the establishment and/or incurrence (as applicable) of such Incremental Facility;
(G) if any Revolving Loans are outstanding at the time of such Increased Amount Date and at establishment of any Incremental Revolver Increase, then the time a definitive agreement is entered into in respect of such Limited Condition TransactionBorrower shall, there is no Event of Default under Section 12.1 or Section 12.5if applicable, prepay one (1) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by of the Borrower and Administrative Agent and then outstanding Revolving Loans (any such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall prepayment to be subject to the requirements set forth Section 3.1(c)) in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing amount necessary such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchasesIncremental Revolver Increase, the each Lender will hold its respective pro rata share of outstanding Revolving Credit Loans of Loans; provided, that, any such Class will prepayment may be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably effected, in whole or in part, pursuant to a cashless rollover in accordance with their Revolving Credit Section 1.6;
(H) any increased or new Commitments established in respect of an existing (as of the date that is immediately prior to the date of establishment of such Incremental Facility) Class of Commitments shall have terms substantially identical to those for Commitments of such Class after giving effect under this Agreement as of the date that is immediately prior to the addition date of establishment of such New Revolving Credit Commitments Incremental Facility, except for fees payable to the Revolving Credit Commitments, and (b) with Lenders providing increased or new Commitments in respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.Incremental Facility;
(cI) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New applicable to any Incremental Term Loan Commitments of any Series a separate Class shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided applicable Incremental Facility Agreement establishing such Incremental Term Loan, provided, that:
(I) such Incremental Term Loan shall have a final maturity date that is coterminous with, or later than, the Latest Maturity Date;
(iII) the applicable New Weighted Average Life of such Incremental Term Loan Maturity Date of each Series shall not be no earlier less than the Initial Weighted Average Life of any other then-outstanding Term Loan Maturity Date(including of the Term Loan A, the Delayed Draw Term Loan and any other then outstanding Incremental Term Loan);
(iiIII) such Incremental Term Loan shall share ratably in any mandatory prepayments of the Term Loans pursuant to Section 2.11(c) (or otherwise provide for more favorable mandatory prepayment treatment for the Term Loan A, the Delayed Draw Term Loan and each other then outstanding Incremental Term Loan) and shall have ratable voting rights as the other Term Loans (or otherwise provide for more favorable voting rights for the Term Loan A, the Delayed Draw Term Loan and each other then outstanding Incremental Term Loan); and
(IV) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule All-In Yield applicable to any Incremental Loans Term Loan shall not be determined more than one-half of one percent (0.50%) higher than the corresponding All-In Yield applicable to any other then-outstanding Term Loan (including the Term Loan A, the Delayed Draw Term Loan and any other then outstanding Incremental Term Loan) (it being understood and agreed that interest on any other then-outstanding Term Loan may be increased to the extent necessary to satisfy this requirement);
(J) the Borrower shall have paid any applicable upfront and/or arrangement fee(s) in connection with the establishment and/or incurrence (as applicable) of such Incremental Facility, as agreed by the Borrower in writing; and
(K) except to the extent otherwise required or permitted pursuant to the foregoing of this clause (e)(i), all other terms and the Lenders thereunder; provided thatconditions of any Incremental Facility, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis if not consistent with the Initial Term Loans, if terms and conditions of the Effective Yield for Term SOFR Revolving Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New other outstanding Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice reasonably satisfactory to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension AmendmentCollateral Agent. Notwithstanding anything to the contrary in the foregoing of this Section 2.14 clause (e)(i): (I) neither Administrative Agent, the Collateral Agent nor any Lender, nor any Affiliate of any of the foregoing (nor any of their respective successors or otherwiseassigns), no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have increase any Class of its Commitments or any of its Term Loans other obligations under this Agreement and the other Credit Documents, or to otherwise provide all, or any portion, of any Existing Term Loan Class converted into Extended Term Loans pursuant Incremental Facility, and any decision by a Lender to agree to any Extension Request. Any Extended Term Loans such increase or to otherwise provide all, or any portion, of an Incremental Facility shall be made in its sole and absolute discretion, independently from, and without reliance upon, any other existing Lender or Additional Incremental Lender; and (II) neither any Arranger, the Administrative Agent, the Collateral Agent nor any Lender, nor any Affiliate of any Extension Series of the foregoing (nor any of their respective successors or assigns), shall constitute a separate Class have any responsibility for arranging any Commitments in respect of Term Loans from the Existing Term Loan Class from which any Incremental Facility, in each case of this clause (e)(i)(II), without their prior written consent and subject to such conditions (including, without limitation, fee arrangements) as they were convertedmay require in connection therewith.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 11.4, the Administrative Agent, the Collateral Agent, the Credit Parties and the existing Lenders and/or Additional Incremental Lenders providing any Commitment(s) in respect of any Incremental Facility, without the further consent of any other Person, are expressly permitted to enter into an Incremental Facility Agreement to amend the Credit Documents to the extent necessary to give effect such Incremental Facility pursuant to the foregoing clause (a), and to implement any technical, administrative and/or mechanical changes that are necessary or otherwise, (1) the borrowing and repayment (other than advisable to be implemented in connection with a permanent repayment and termination of commitments) therewith (including, without limitation, to ensure continuing pro rata allocations of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit and Commitments and (2) no Extended Revolvinto implement ratable participations in Letters of Credit).
Appears in 2 contracts
Sources: Credit Agreement (Safepoint Holdings, Inc.), Credit Agreement (Safepoint Holdings, Inc.)
Incremental Facilities. (a1) The Parent Borrower maymay at any time, by written notice or from time to Administrative Agenttime, elect to request the establishment of (x) one or more additional classes of term “A” loans or additional term loans of the same class of any existing Term A Loans (“Incremental Term A Loans”) or (y), one or more additional classes of term “B” loans or additional term loans of the same class of any existing Term B Loans ( “Incremental Term B Loans” and together with the Incremental Term A Loans, “Incremental Term Loans”) and (2) the Borrowers may at any time, or from time to time, request (x) additional tranches of term loans one or more increases in Term Loans the amount of the Revolving Loan Commitments of any Class class (the commitments theretoeach such increase, the an “New Term Incremental Revolving Loan CommitmentsCommitment Increase”), and/or ) or (y) one or more additional tranches classes of revolving loans or increases in credit commitments ( “Additional/Replacement Revolving Credit Commitments of any Class (the “New Revolving Credit Loan Commitments,” and, together with the New all Incremental Term Loans and Incremental Revolving Loan CommitmentsCommitment Increases, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect subject to New Section 11.2(g), at the time that any such Incremental Term Loan, Incremental Revolving Loan Commitments incurred in reliance of clause Commitment Increase or Additional/Replacement Revolving Loan Commitment is made or effected (aand upon giving Pro Forma Effect thereto), (x) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 subsection 7.1(a), 7.1(f) or Section 12.5 7.1(g) shall exist have occurred and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) continuing and (y) the representations and warranties made by any Credit Party contained herein or in any other Loan Document shall be true and correct in all material respects (Awithout duplication of any materiality qualifier contained therein) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans as of such Existing Term Loan Class and/or date, except (B1) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided that such representations and warranties expressly relate to an earlier date (in the applicable Extension Amendment. Notwithstanding anything to the contrary which event such representations and warranties were true and correct in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans all material respects (without duplication of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(iimateriality qualifier contained therein) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time as of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”earlier date) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvinthat for purposes of this Section 1.12(a), the representations and warranties contained in Section 3.11(a) shall be deemed to refer to the most recent statements furnished pursuant to Sections 4.1(a) and (b), respectively.
Appears in 2 contracts
Sources: Credit Agreement (Fortrea Holdings Inc.), Credit Agreement (Fortrea Holdings Inc.)
Incremental Facilities. (a) The Borrower Borrowers may, from time to time after the Closing Date, upon notice by written notice the Parent Borrower to the Person appointed by the Borrower to arrange an incremental Facility (such Person (who (i) may be the Administrative Agent, elect if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to request be increased) (a “Revolving Credit Commitment Increase”), (ii) an increase in any Term Loan Tranche then outstanding (which shall be on the establishment same terms as, and become part of, the Term Loan Tranche proposed to be increased hereunder (except as otherwise provided in clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”), (iii) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (x) additional tranches of term loans or increases in Term Loans of each, a “New Revolving Facility” and, any Class (advance made by a Lender thereunder, a “New Revolving Loan”; and the commitments theretothereof, the “New Revolving Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class (the “New Revolving Credit CommitmentsCommitment” and, and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Loan CommitmentsCommitment Increase, the “New Loan Commitments”), by ) in an aggregate amount not in excess to exceed the sum of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or greater of (yA) shall constitute $100,000,000 and (B) Consolidated EBITDA for the difference between the Maximum Incremental Facilities Amount most recently ended four fiscal quarter period for which internal financial statements are available (and all such New Loan Commitments obtained on or prior to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitmentsany acquisition consummated concurrently therewith on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.10) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement Maximum Leverage / Minimum Interest Coverage Requirement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) satisfied and (iiz) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New (i)(A) all voluntary prepayments of (1) Term Loan Commitment of such Series, Loans made pursuant to Section 2.05(a) and (ii2) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans Incremental Notes that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary voluntary prepayments of Holdings (all other than Indebtedness secured by a Lien that is pari passu with the Borrower or a Guarantor) is an obligor Liens securing the Obligations and (iii) if voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) to the New extent accompanied by a corresponding, permanent reduction in the Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior pursuant to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A2.06(a), in each case, to the extent provided not funded with the proceeds of long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the applicable Extension Amendment. Notwithstanding anything case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to the contrary in this Section 2.14 or otherwiseand New Incremental Notes issued pursuant to Section 2.15:
(A) the Borrowers shall be deemed to have used amounts under the Prepayment-Based Incremental Facility, no Extended Term Loans if any, prior to utilization of the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility,
(B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be optionally prepaid prior incurred under the Ratio-Based Incremental Facility (to the date on which extent compliant therewith), the Existing Term Loan Class Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from which they were converted is repaid any such incurrence may be utilized in full, except in accordance with a single transaction by first calculating the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans incurrence under the Ratio-Based Incremental Facility (without inclusion of any Existing Term Loan Class converted into Extended Term Loans amounts substantially concurrently utilized pursuant to any Extension Request. Any Extended Term Loans the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any Extension Series shall constitute a separate Class of Term Loans from amounts substantially concurrently utilized pursuant to the Existing Term Loan Class from which they were converted.Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility,
(iiC) The Borrower the Borrowers may at any time and from time to time request that redesignate all or a any portion of Indebtedness originally designated as incurred under the Revolving Credit Commitments of any ClassCash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request redesignation, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility (eachwhich, an “Existing Revolving Credit Commitment” and for the avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any related revolving credit loans thereunderfiscal quarter, “Existing Revolving Credit Loans”; each Existing such redesignation would be permitted under this clause (C), and
(D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds incurred pursuant to this Section 2.14 and/or New Incremental Notes being incurred at such test date in calculating such Consolidated First Lien Net Leverage Ratio, Consolidated Senior Secured Net Leverage Ratio or Consolidated Total Net Leverage Ratio shall be excluded (it being understood that to the extent such proceeds are to be used to repay Indebtedness, the Borrowers shall be permitted to give Pro Forma Effect to such repayment). The Borrowers may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as Borrower may deem appropriate.
(b) Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The Borrowers may also invite additional Eligible Assignees reasonably satisfactory to the Incremental Arranger and, solely in connection with a Revolving Credit Commitment and related Existing Increase or New Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend Facility, with the termination date thereof and the scheduled maturity date(s) consent of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent Agent, each L/C Issuer (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent the consent of any of the foregoing would be required to assign Revolving Credit Loans or Term Loans, as applicable, to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided in that, with respect to any New Loan Commitments, the applicable Extension Amendment. Notwithstanding anything Borrowers must provide to the contrary Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request.
(c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or otherwise(ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date.
(d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii)
(A) in the case of any increase of the Revolving Tranche, (1) the borrowing final maturity shall be the same as the Maturity Date applicable to the Revolving Credit Facility, (2) no amortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required and repayment (3) the terms and documentation applicable to the Revolving Credit Facility shall apply, (B) in the case of any New Revolving Facility, (1) other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments Facility and (2) no Extended Revolvinamortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required, (C) in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans or Specified Refinancing Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the longest remaining Weighted Average Life to Maturity of, any other outstanding Term Loans, New Term Loans or Specified Refinancing Term Loans, as applicable; provided that Extendable Bridge Loans and Indebtedness Incurred pursuant to the Inside Maturity Date Exception may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, and (D) in the case of any New Term Facility other than in the case of Extendable Bridge Loans and Indebtedness Incurred pursuant to the Inside Maturity Date Exception, (1) such New Term Facility shall have a final maturity no earlier than the then Latest Maturity Date of any Term Loan Tranche and (2) the Weighted Average Life to Maturity of such New Term Facility shall be no shorter than that of any existing Term Loan Tranche; (iii) all other terms applicable to any New Term Facility or Revolving Facility (including, subject to any applicable limitations specifically set forth above in this clause (d) or below in clause (f), will be as agreed between the Borrowers and the Lenders providing such New Revolving Facility or New Term Facility; provided that the negative covenants and events of default will (x) be not materially more favorable, taken as a whole, to such Lenders than the terms of such existing Revolving Facility (in the case of any New Revolving Facility) or existing Term Facility (in the case of a New Term Facility) unless (A) the Lenders under the existing Revolving Facility or Term Facility, as applicable, also receive the benefits of such more favorable terms (and to the extent the existing Lenders under the Revolving Facility or New Term Facility are to receive the benefit of such terms, such terms may be incorporated into the Loan Documents for the benefit of all existing Lenders under the Revolving Facility or Term Facility without further amendment requirements) or (B) any such provisions apply only after the maturity date of the initial Revolving Facility or Term Facility, as applicable or (y) be reasonably acceptable to the Administrative Agent; and (iv) to the extent reasonably requested by the Incremental Arranger, 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 4.01 or delivered from time to time pursuant to Section 6.12, Section 6.14 and/or Section 6.16 with respect to Holdings and the Borrowers 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). Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrowers.
(e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) 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 increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (exc
Appears in 2 contracts
Sources: Credit Agreement (Maravai Lifesciences Holdings, Inc.), Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Incremental Facilities. (a) The At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect request to request the establishment of add (i) (x) one or more increases to any existing Term Loan or Incremental Term Loan (xeach such increase, a “Term Loan Increase”) or (y) one or more additional tranches of term loans or increases in (“Other Term Loans of Loans” and together with any Class (the commitments theretoTerm Loan Increase, the “New Incremental Term Loan CommitmentsLoans”)) or (ii) solely during the Revolving Availability Period, and/or (y) additional tranches of revolving loans one or more increases in the aggregate amount of the Revolving Credit Commitments of any Class (the each such increase, a “New Revolving Credit CommitmentsCommitment Increase” and, together with the New Incremental Term Loan CommitmentsLoans, the “New Loan CommitmentsIncremental Facilities”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment (or, subject to clauses (A) and (B) below, to the extent the initial proceeds of any Incremental Facilities are used in connection with any acquisition of or other investment in all or substantially all of the Equity Interests, assets or business of any Person or any assets constituting a business unit, line or division of such Person, at and as of the date the agreement with respect to such acquisition or other investment is signed), (A) no Default has occurred and is continuing or shall result therefrom (provided that in the event the initial proceeds of any Incremental Facilities are used in connection with any acquisition of or other investment in all or substantially all of the Equity Interests, assets or business of any Person or any assets constituting a business unit, line or division of such Person, such condition precedent set forth in this clause (A) may be waived or limited as agreed between the Borrower and the Lenders providing such Incremental Facility, without the consent of any other Lenders), (B) the representations and warranties of the Borrower set forth in the Loan Documents (or, to the extent the initial proceeds of any Incremental Facilities are used in connection with any acquisition of or other investment in all or substantially all of the Equity Interests, assets or business of any Person or any assets constituting a business unit, line or division of such Person, at the time the agreement with respect to such acquisition or other investment is signed and upon the effectiveness of such Incremental Facility Amendment, solely the representations and warranties of the Borrower set forth in Sections 3.01(a), 3.01(b), 3.02, 3.03(b) (with respect to the charter, articles or certificate of organization or incorporation and bylaws or other organizational or governing documents of the Borrower), 3.08(d), 3.09, 3.10 and 3.14 and customary specified acquisition agreement representations and warranties with respect to the Person to be acquired) shall be true and correct in all material respects (or, in the case of representations and warranties qualified as to materiality or Material Adverse Effect, in all respects) at and as of such time, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date, (C) the Borrower shall be in compliance on a Pro Forma Basis after giving effect to the incurrence or assumption of such Indebtedness (and the application of the proceeds therefrom) with the covenants contained in Sections 6.09 (if then applicable) and 6.10 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are required to have been delivered pursuant to Section 5.01(a) or 5.01(b) (and, if such Incremental Facility is in the form of a Revolving Commitment Increase, assuming for purposes of determining compliance thereof that such Revolving Commitment Increase is fully drawn as of the last day of such fiscal quarter); provided that if such compliance is measured on the date the agreement is signed with respect to an acquisition of or other investment in all or substantially all of the Equity Interests, assets or business of any Person or any assets constituting a business unit, line or division of such Person, then in connection with the calculation of any financial ratio with respect to any covenant set forth in Article VI or in connection with the designation of an Unrestricted Subsidiary pursuant to Section 6.12 or in connection with the designation of a Qualified Acquisition, in each case on or following such date and prior to the earlier of the date on which such acquisition or investment is consummated or the agreement with respect to such acquisition or investment is terminated, such financial ratio shall be calculated on a Pro Forma Basis assuming such acquisition, investment and any other pro forma events in connection therewith (including the incurrence of Indebtedness and such Incremental Facility) have been consummated, except to the extent such calculation would result in a lower Total Net Leverage Ratio, a lower Total Senior Secured Leverage Ratio or a higher ratio of Consolidated Interest Coverage Ratio (if applicable) than would apply if such calculation was made without giving effect to such acquisition, investment, other pro forma events in connection therewith or the incurrence of Indebtedness or any Incremental Facility on a Pro Forma Basis, and (D) the Borrower shall have delivered a certificate of a Responsible Officer certifying as to compliance with clauses (A), (B) and (C) above, together with reasonably detailed calculations demonstrating compliance with clause (C) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and the Compliance Certificate required to be delivered by Section 5.01(a) or 5.01(b) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Debt Service (if applicable) for the relevant period). Notwithstanding anything to the contrary herein, the aggregate principal amount of all New Revolving Credit Commitments the Incremental Facilities shall not exceed $35,000,000 during 2,500,000,000 at any one time outstanding. Each Term Loan Increase, each tranche of Other 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 $10,000,000; provided that such amount may be less than $10,000,000 if such amount represents all the term remaining availability under the aggregate principal amount of this AgreementIncremental Facilities set forth above. In each caseSolely in connection with any calculation of the Total Net Leverage Ratio for purposes of clause (C) above, such New Loan Commitments shall become effective as the cash proceeds of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and Facility will not be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitmentsdeducted from Total Indebtedness.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to Any Incremental Term Loans structured as a separate tranche of term loans from the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Term Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall rank pari passu or junior in right of payment with the Obligations, (ii) for purposes of prepayments, shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment treated substantially the same as (a “New Revolving Credit Loan”and in any event no more favorably than) shall be deemed, for all purposes, Revolving Credit the applicable Class of Term Loans and (iiiii) each New Revolving Loan Lender shall become a Lender with respect other than amortization, pricing, maturity date and any other terms acceptable to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer Agent, shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on same terms as determined by the Borrower and set forth in the Joinder Agreementapplicable Class of Term Loans; provided that (iA) the applicable New any Incremental Term Loan Maturity Date of each Series shall be no not have a final maturity date earlier than the Initial Maturity Date for the applicable Class of Term Loans and (B) any Incremental Term Loan Maturity Date, (ii) the shall not have a weighted average life to maturity of all New Term Loans shall be no that is shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial then-remaining Term LoansLoans of the applicable Class. Notwithstanding anything herein to the contrary, (iii) no Subsidiary the terms and provisions of Holdings any Term Loan Increase (other than arrangement, upfront, amendment and other similar fees and original issue discount) shall be identical to those of the applicable Class of Term Loans subject to such increase.
(c) Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Any additional bank, financial institution, existing Lender or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, Person that any New Term Loans that are secured by a Lien on the Collateral that is junior elects to extend Incremental Facilities shall be reasonably satisfactory to the Lien securing Borrower and the Obligations, or that is unsecured, shall be established as a separate facility and be subjectAdministrative Agent (and, in the case of any Revolving Commitment Increase, each Issuing Bank) (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Loans secured Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Collateral on a junior lien basisBorrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to provide any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided thatFacility, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans unless it so agrees. Commitments in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans any Incremental Facilities shall become Commitments (or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such New Term Loans denominated in U.S. Dollars, 0.50%, and (iiRevolving Lender’s Revolving Commitment) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder under this Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable . An Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement Facility Amendment may, without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the or any other Credit Documents Loan Document as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision provisions of this Section 2.14, including, without limitation, any amendments with respect 2.20 (including to alternative currency in connection with provide for voting provisions applicable to the establishment Additional Lenders comparable to the provisions of clause (B) of the second proviso of Section 9.02(b)). The effectiveness of any New Revolving Credit Commitments denominated in a currency other than DollarsIncremental Facility Amendment shall, any amendments that unless otherwise agreed to by the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase Administrative Agent and the Additional Lenders, be subject to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors satisfaction on the existing Class effective date thereof (each, an “Incremental Facility Closing Date”) of Term Loans may be automatically increased, each of the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; conditions set forth in Section 4.02 (it being understood and agreed by that all references to “the parties hereto that the Administrative Agent will not date of such Borrowing” in Section 4.02 shall be making, and shall not be responsible for, any determinations as deemed to refer to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereofIncremental Facility Closing Date).
(d) On the date of effectiveness of any Revolving Commitment Increase, (i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any aggregate principal amount of such Term the Revolving Loans outstanding (any such Term Loans which have been so converted, the “Extended Term LoansExisting Revolving Borrowings”) immediately prior to the effectiveness of such Revolving Commitment Increase shall be deemed to be repaid, (ii) each Revolving Commitment Increase Lender that shall have had a Revolving Commitment prior to the effectiveness of such Revolving Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the amount, if any, by which (A) (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) exceeds (B) (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each Revolving Commitment Increase Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Revolving Commitment Increase shall pay to Administrative Agent in same day funds an amount equal to (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to provide for other terms consistent with this Section 2.14(h). In order each Revolving Lender the portion of such funds that is equal to establish any Extended Term Loansthe amount, if any, by which (A) (1) such Revolving Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, exceeds (B) (1) such Revolving Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (v) after the effectiveness of such Revolving Commitment Increase, the Borrower shall provide be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a notice Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (who and the Borrower shall provide a copy deliver such Borrowing Request), (vi) each Revolving Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such notice Revolving Commitment Increase) and (vii) the Borrower shall pay each Revolving Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.15 if the date of the effectiveness of such Revolving Commitment Increase occurs other than on the last day of the Interest Period relating thereto. Upon each Revolving Commitment Increase pursuant to this Section 2.20, each Revolving Lender immediately prior to such increase will automatically and without further action be deemed to have assigned to each 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 Letters of Credit such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of participations, the percentage of the Lenders aggregate outstanding participations hereunder in Letters of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were convertedCredit, in each case as more particularly set forth in paragraph held by each Revolving Lender (ivincluding each such Revolving Commitment Increase Lender) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of will equal such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were convertedRevolving Lender’s Applicable Percentage.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin
Appears in 2 contracts
Sources: Credit Agreement (Crown Castle International Corp), Credit Agreement (Crown Castle International Corp)
Incremental Facilities. (a) The Provided (w) there exists no Default or Event of Default, (x) the Borrower mayshall be in compliance on a Pro Forma Basis with the covenants contained in Section 7.11, in each case recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower for which financial statements are available, (y) the Borrower shall have delivered a certificate of a Responsible Officer to the effect set forth in clauses (w) and (x) above, together with reasonably detailed calculations demonstrating compliance with clause (x) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 6.01(a) or (b) and Section 6.02(b), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the relevant period) and (z) subject to the conditions set forth in clause (f) below, the Borrower may at any time or from time to time after the Amendment Effective Date, by written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect to request the establishment of (i) one or more tranches of new term loans (“New Term Loans”) under one or more new term facilities (the “New Term Loan Facility”), (ii) one or more increases in the total amount of the Revolving Credit Commitments (the “Additional Revolving Facility Commitments”) under the Revolving Facility, provided, that such Additional Revolving Facility Commitments shall be on the same terms as the existing Revolving Credit Commitments and in all respects shall become part of the Revolving Facility hereunder, or (iii) one or more new revolving credit commitments (the “Incremental Revolving Facility Commitments” and together with any Additional Revolving Facility Commitments, the “Incremental Revolving Credit Commitments”) under one or more additional revolving credit facilities (the “Incremental Revolving Facility” and together with any New Term Loan Facility, the “Incremental Facilities”). Notwithstanding anything to the contrary herein, the sum of (i) the aggregate principal amount of the Additional Revolving Facility Commitments, (ii) the aggregate principal amount of the Incremental Revolving Facility Commitments and (iii) the aggregate principal amount of all New Term Loan Facilities incurred after the Amendment Effective Date shall not exceed (x) $25,000,000 plus (y) on and after the SCH Completion date, an additional tranches $100,000,000 (clauses (x) and (y) collectively, the “Incremental Cap”). Each Additional Revolving Facility Commitment and Incremental Revolving Facility shall be in a minimum principal amount of term loans $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. Each new Term Loan Facility shall be in a minimum principal amount of $25,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Cap; provided that the Incremental Cap shall be reduced on a dollar-for-dollar basis by any Permitted Senior Notes issued pursuant to Section 2.14(g).
(b) The Incremental Revolving Facility (i) shall rank pari passu in right of payment and of security with the Revolving Facility, (ii) shall mature no earlier than the Maturity Date, (iii) shall have pricing as agreed between the Borrower and such lenders providing such Incremental Revolving Credit Commitments (the “Incremental Revolving Lenders”); provided that the pricing in respect thereof shall be consistent with then prevailing market rates, (iv) if the All-In-Yield related to any Incremental Revolving Facility exceeds the All-In-Yield relating to the Revolving Credit Loans immediately prior to the effectiveness of the applicable Incremental Revolving Facility by more than 0.25% per annum, the Applicable Rate relating to the Revolving Credit Loans shall be adjusted to be at least equal to the All-In-Yield relating to such Incremental Revolving Facility minus 0.25% per annum, (v) may provide for a new Letter of Credit sublimit to the extent approved in its sole discretion by such L/C Issuer (who may be the existing L/C Issuers) (an “Incremental L/C Issuer”) that has agreed to provide a new Letter of Credit commitment (an “Incremental L/C Commitment”), (vi) may provide for a new Swing Line sublimit to the extent approved in its sole discretion by the swing line lender (who may be the existing Swing Line Lender) that has agreed to provide such Incremental Swing Line Commitment (an “Incremental Swing Line Lender”) and (vii) shall otherwise have the same terms as the existing Revolving Facility.
(c) The New Term Loan Facility (i) shall rank pari passu in right of payment and of security with the Revolving Facility, (ii) shall have pricing as agreed between the Borrower and such lenders (the “New Term Lenders” and together with the Incremental Revolving Lenders and any Lender or increases Additional Lender providing Additional Revolving Facility Commitments, the “Incremental Lenders”) providing commitments in respect of such New Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments pricing in respect thereof shall be consistent with then prevailing market rates, (iii) shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no mature earlier than the Initial Term Loan Maturity Date, (iiiv) the weighted average life Weighted Average Life to maturity Maturity of all such New Term Loans shall be no shorter than the weighted remaining average life to maturity (without giving effect to prepayments) of the Initial Revolving Facility and (v) all other terms of such New Term Loans, if not consistent with the terms of the existing Revolving Facility, (iiiA) no Subsidiary of Holdings (other than will be as agreed between the Borrower or a Guarantor) is an obligor and (iv) if the New Term Lenders providing such New Term Loans and (B) other than with respect to pricing and amortization, shall not be more restrictive than the terms of any existing Revolving Facility unless the Lenders under the existing Revolving Facility also receive the benefit of the more restrictive terms (without any consent being required); provided that the terms of the New Term Loan Facility may include pro rata mandatory prepayment requirements for asset sales and other mandatory prepayment events;
(d) Each written notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount, proposed terms of the relevant New Term Loans or Incremental Revolving Facility and the proposed effective date for the making of such Incremental Facility or increase in the Revolving Facility (the “Increase Effective Date”). New Term Loans may be made, and Incremental Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; and Additional Revolving Facility Commitments may be provided, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any New Term Loans Loan or of any Incremental Revolving Credit Commitments or Additional Revolving Facility Commitments) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that are secured by a Lien on (x) the Collateral that is junior Borrower shall first request any such New Term Loan, Incremental Revolving Credit Commitments or Additional Revolving Facility Commitments from the existing Lenders prior to soliciting commitments from Additional Lenders and (y) any such Additional Lenders shall be reasonably acceptable to the Lien securing the Obligations, or that is unsecured, Administrative Agent (who shall be established as a separate facility and presumed to decline such request if not affirmatively accepted within 10 Business Days from the date of such request). No existing Lender shall be subjectobligated to provide any New Term Loans, in the case of Incremental Loans secured by the Collateral on a junior lien basisRevolving Credit Commitments or Additional Revolving Facility Commitments, to the Second Lien Intercreditor Agreementunless it so agrees.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans Commitments in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, Incremental Revolving Commitments and or Additional Revolving Facility Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as applicableappropriate, the other Loan Documents, executed by more than (i) in the case of any such New Term Loans denominated in U.S. DollarsBorrower, 0.50%each Incremental Lender, each Incremental L/C Issuer, if any, each Incremental Swing Line Lender, if any, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) Administrative Agent. The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement Amendment may, without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Loan Documents as may be necessary or appropriatenecessary, including any amendments to the Schedule I, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provision provisions of this Section 2.14. The Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Credit Loans in respect of Additional Revolving Facility Commitments and Incremental Revolving Facility Commitments, includingwhen originally made, without limitation, are included in each Borrowing of outstanding Revolving Credit Loans on a pro rata basis. The Borrower shall pay to the applicable Lender any amendments with respect to alternative currency costs of the type referred in Section 3.05 in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) foregoing. The Borrower may at any time, and from time to time, request that all or a portion will use the proceeds of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended New Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Incremental Revolving Credit Commitments and (2) no Extended Revolvinor Additional Revolving Facility Commitments for general corporate purposes or any other purpose not prohibited hereby.
Appears in 1 contract
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent, elect to Agent request the establishment of (i) one or more (x) additional tranches Classes of term loans or increases in Term Loans additional term loans of the same Class of any existing Class of term loans (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or (yii) additional tranches of revolving loans one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments (the “New Additional/Replacement Revolving Credit Commitments,” and, together with the New Incremental Term Loan CommitmentsLoans and the Incremental Revolving Credit Commitment Increases, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, by an aggregate amount not in excess of subject to Section 1.11, at the Maximum time that any such Incremental Facilities Amount Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior proviso to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (ab) of the definition of Maximum Incremental Facilities Amountbelow, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments(or, as applicable (and, otherwisein the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition, no Event of Default under Section 12.1 11.1 or Section 12.5 11.5) shall exist have occurred and be continuing.
(b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (it being understood that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and, subject to the proviso at the end of this Section 2.14(b), the aggregate amount of (x) the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to Section 1.11, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of such Test Period, that is no greater than 5.00:1.00 (this clause (B), the “Incremental Ratio Debt Amount” and, together with the Incremental Base Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be Incurred without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in the first part of this 2.14(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans on the date of Incurrence of such Incremental Term Loans (or substantially concurrently therewith) are used to either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 5.2(a)(i) or (y) permanently reduce the Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments in accordance with the procedures set forth in Section 5.2(e)(ii) (and any such Incremental Term Loans shall be deemed to have been Incurred pursuant to this proviso), and (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments, Extended Revolving Credit Commitments or other Additional/Replacement Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided (and any such Additional/Replacement Revolving Credit Commitments shall be deemed to have been Incurred pursuant to this proviso).
(i) The Incremental Term Loans (A) shall rank equal in right of payment and security with the Initial Term Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties, (B) shall not mature earlier than the Initial Term Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, AHYDO Catch-Up Payments, funding discounts, original issue discounts and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided that, in the event that the Effective Yield for any Incremental Term Loans (other than Incremental Term Loans (w) Incurred pursuant to clause (B) of Section 2.14(b), (x) established pursuant to the proviso of Section 2.14(b), (y) having a final maturity date that is more than two years after the Initial Term Loan Maturity Date or (z) Incurred in connection with a Permitted Acquisition (clauses (w), (x), (y) and (z), collectively, the “MFN Exceptions”)), is greater than the Effective Yield for the Initial Term Loans by more than 0.50%, then the Applicable Margins for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.50% (this proviso, the “MFN Protection”); provided, further, that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Eurodollar Rate, for purposes of calculating the applicable increase (if any) in the Applicable Margins for the Initial Term Loans in the immediately preceding proviso, the Applicable Margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving pro forma effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable Reference Rate; and (E) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that (x) except with respect to matters contemplated by clauses (B), (C) and (D) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility.
(ii) The Incremental Revolving Credit Commitment Increase shall be treated the same as the Class of Revolving Credit Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase (without any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) The Additional/Replacement Revolving Credit Commitments (A) shall rank equal in right of payment and security with the Revolving Credit Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties, (B) shall not mature earlier than the Revolving Credit Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, AHYDO Catch-Up Payments, original issue discounts, maturity, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and the lenders of such commitments; provided that, in the event that the Effective Yield for any Additional/Replacement Revolving Credit Loans (other than Additional/Replacement Revolving Credit Loans under Loans under any Additional/Replacement Revolving Credit Commitments (w) incurred pursuant to Section 2.14(b)(B), (x) established pursuant to the proviso of Section 2.14(b), (y) having a final maturity date that is more than two years after the Revolving Credit Maturity Date or (z) Incurred in connection with a Limited Condition TransactionPermitted Acquisition), at is greater than the time of such Increased Amount Date and at Effective Yield for the time a definitive agreement is entered into in respect of such Limited Condition TransactionRevolving Credit Loans by more than 0.50%, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) then the New Loan Commitments Applicable Margins for the Revolving Credit Loans shall be effected pursuant increased to one or more Joinder Agreements executed the extent necessary so that the Effective Yield for the Revolving Credit Loans are equal to the Effective Yield for the Additional/Replacement Revolving Credit Loans minus 0.50%; (D) shall contain borrowing, repayment and delivered termination of Commitment procedures as determined by the Borrower and the lenders of such commitments, (E) may include provisions relating swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to the Swingline Loans and Letters of Credit with respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (F) may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and (E) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Credit Commitments may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such lenders providing Previously Absent Financial Maintenance Covenant for the New Loan benefit of each Credit Facility (provided, further, however, that, if the applicable Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Financial Maintenance Covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)).
(d) Each notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. Incremental Term Loans may be made, and each of which shall be recorded in the Register Incremental Revolving Credit Commitment Increases and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Additional/Replacement Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effectedprovided, subject to the satisfaction prior written consent of the foregoing terms and conditionsBorrower (not to be unreasonably withheld or delayed), by any existing Lender (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each it being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation to make a New Revolving Credit Commitment (eachportion of any Incremental Term Loan, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders no existing Lender with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under will have any obligation to provide a New portion of any Incremental Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans Increase and (ii) each New Revolving Loan Lender shall become a no existing Lender with respect to the New a Revolving Credit Commitment and all matters relating theretowill have an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, the Swingline Lender and each the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s or Additional Lender’s providing such New Incremental Revolving Credit Commitment to the extent Increases or Additional/Replacement Revolving Credit Commitments if such consent, if any, consent would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender or Additional Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Commitments in respect of Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable an Incremental Revolving Credit Maturity Date of each Series shall Commitment Increase to be no earlier than the provided by an existing Lender with a Revolving Credit Maturity DateCommitment, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New increase in such Lender’s applicable Revolving Credit Commitments are securedCommitment) under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, are not secured as appropriate, the other Credit Documents, executed by a Lien on any assets of Holdings or its Subsidiaries other than Holdings, the Collateral; providedBorrower, that any New Revolving Credit Loans that are secured by a Lien on each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Administrative Agent. The Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provision provisions of this Section 2.14, including, without limitation, any amendments with respect to alternative currency (including (i) in connection with the establishment of any New an Incremental Revolving Credit Commitments denominated in Commitment Increase, to reallocate Revolving Credit Exposure on a currency other than Dollarspro rata basis among the relevant Revolving Credit Lenders, any amendments that (ii) to increase the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans Effective Yield of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such the applicable Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the extent necessary in order to ensure that any applicable Class of Incremental Term Loans are “fungible” with such existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
and/or (i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extendediii) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all add or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin
Appears in 1 contract
Sources: Incremental Revolving Credit Commitment Increase Agreement (MultiPlan Corp)
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent, elect to Agent request the establishment of (i) one or more (x) additional tranches Classes of term loans or increases in Term Loans additional term loans of the same Class of any existing Class of term loans (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or (yii) additional tranches of revolving loans one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments in U.S. Dollars or any Alternative Currency (the “New Additional/Replacement Revolving Credit Commitments” ”, and, together with the New Incremental Term Loan CommitmentsLoans and the Incremental Revolving Credit Commitment Increases, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, by an aggregate amount not in excess of subject to Section 1.10, at the Maximum time that any such Incremental Facilities Amount Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior proviso to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (ab) of the definition of Maximum Incremental Facilities Amountbelow, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments(or, as applicable (and, otherwisein the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition or other Investment, no Event of Default under Section 12.1 11.1 or Section 12.5 11.5) shall exist have occurred and be continuing.
(b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 or like amount in an Alternative Currency, as applicable, (it being understood that such amount may be less than $5,000,000 or like amount in an Alternative Currency, as applicable, if such amount represents all remaining availability under the limit set forth below) (and unless otherwise agreed by the Borrower and the Administrative Agent, in minimum increments of $1,000,000 or like amount in an Alternative Currency, as applicable, in excess thereof), and, subject to the proviso at the end of this Section 2.14(b), following the FirstSecond Incremental Agreement Effective Date the aggregate amount of (x) the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to Section 1.10, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of such Test Period, that is no greater than either (x) 4.50:1.00 or (y) if Incurred in connection with an Acquisition or other Investment, the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such Acquisition or other Investment (this clause (B), the “Incremental Ratio Debt Amount” and, together with the Incremental Base Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be Incurred without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in the first part of this Section 2.14(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of Incurrence of such Incremental Term Loans (or substantially concurrently therewith) to either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 5.2(a)(i) or (y) permanently reduce the Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments in accordance with the procedures set forth in Section 5.2(e)(ii) (and any such Incremental Term Loans shall be deemed to have been Incurred pursuant to this proviso), and (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the minimums set forth in the first sentence of this Section 2.14(b) and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments, Extended Revolving Credit Commitments or other Additional/Replacement Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided (and any such Additional/Replacement Revolving Credit Commitments shall be deemed to have been Incurred pursuant to this proviso).
(i) The Incremental Term Loans (A) shall rank equal in right of payment and security with the Initial Term Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis, (B) shall not mature earlier than the Initial Term Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, AHYDO Catch Up Payments, funding discounts, original issue discounts, currency types and denominations and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided that, during the period commencing on the Closing Date and ending on the six-month anniversary of the Closing Date, in the event that the Effective Yield for any Incremental Term Loans denominated in U.S. Dollars (other than Incremental Term Loans (1) Incurred pursuant to clause (B) of Section 2.14(b), (2) established pursuant to the proviso of Section 2.14(b), (3) having a final maturity date that is more than one year after the Initial Term Loan Maturity Date or (4) Incurred in connection with an Acquisition or (5) in an aggregate principal amount equal to or less than the greater of (x) $120,000,000, (y) 75.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such determination (measured as of such date) based upon the Internal Financial Statements most recently available on or prior to such date or (z) Incremental Terms Loans consisting of a customary bridge facility, so long as the Indebtedness outstanding under any such customary bridge facility may be converted into or exchanged for long term debt that satisfies clauses (B) and (C) and any such conversion or exchange is subject only to conditions customary for similar conversions or exchanges (clauses (x)(1) through (5) and (y), collectively, the “MFN Exceptions”)), is greater than the Effective Yield for the Initial Term Loans by more than 0.75%, then the Applicable Margins for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.75% (this proviso, the “MFN Protection”); provided, further, that, notwithstanding the foregoing, Incremental Term Loans in an amount not exceeding the Incremental/Refinancing Maturity Limitation Excluded Amount may be Incurred without regard to clause (B) and/or (C) of this Section 2.14(c)(i); provided, further, that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Eurodollar Rate, for purposes of calculating the applicable increase (if any) in connection the Applicable Margins for the Initial Term Loans in the immediately preceding proviso, the Applicable Margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving pro forma effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable Reference Rate; and (E) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that (x) except with respect to matters contemplated by clauses (B), (C) and (D) above, any differences shall be either, at the option of the Borrower, (1) reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) or (2) consistent market terms and conditions, when taken as a Limited Condition Transactionwhole, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect Incurrence or effectiveness of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5Incremental Facility (as determined by the Borrower in good faith) and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Covenant for the benefit of each Credit Facility.
(ii) the New Loan Commitments The Incremental Revolving Credit Commitment Increase shall be effected pursuant treated the same as the Class of Revolving Credit Commitments being increased (including with respect to one maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and additional upfront or more Joinder Agreements executed similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase (without any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) The Additional/Replacement Revolving Credit Commitments (A) shall rank equal in right of payment and delivered security with the Revolving Credit Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis, (B) shall not mature earlier than the Revolving Credit Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, currency types and denominations, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and the lenders of such commitments, (D) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments, the swingline lender and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to the Swingline Loans and Letters of Credit with respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and such lenders providing (E) may otherwise have terms and conditions different from those of the New Loan CommitmentsRevolving Credit Facility; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and each of which (E) above, any differences shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shalleither, at the election option of the Borrower, (i) reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) or (2) consistent with market terms and conditions when taken as a whole at the time of the incurrence or effectiveness of such Incremental Facility by the Borrower (as determined in good faith) and agreed (y) the documentation governing any Additional/Replacement Revolving Credit Commitments may include any Previously Absent Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to by Lenders providing include such New Term Loan CommitmentsPreviously Absent Covenant for the benefit of each Credit Facility (provided, be designated as (a) a separate series (further, however, that, if the applicable Previously Absent Covenant is a “Series”springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)).
(d) Each notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount, currency types and denominations and proposed terms of New the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. Incremental Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New may be made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effectedprovided, subject to the satisfaction prior written consent of the foregoing terms and conditionsBorrower (not to be unreasonably withheld or delayed), by any existing Lender (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each it being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation to make a New Revolving Credit Commitment (eachportion of any Incremental Term Loan, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders no existing Lender with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under will have any obligation to provide a New portion of any Incremental Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans Increase and (ii) each New Revolving Loan Lender shall become a no existing Lender with respect to the New a Revolving Credit Commitment and all matters relating theretowill have an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, the Swingline Lender and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s or Additional Lender’s providing such New Incremental Revolving Credit Commitment to the extent Increases or Additional/Replacement Revolving Credit Commitments if such consent, if any, consent would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender or Additional Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Commitments in respect of Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable an Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended RevolvinRevol
Appears in 1 contract
Sources: Incremental Agreement (Grocery Outlet Holding Corp.)
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect to request the establishment of one or more (x) additional tranches Classes of term loans or increases in Term Loans of any Class (the commitments thereto“Incremental Term Loans”; such facilities, the “New Term Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of at the time any Class (the “New Revolving Credit Commitments” and, together with the New such Incremental Term Loan Commitments, is made or effected (and after giving Pro Forma Effect thereto and the “New Loan Commitments”use of proceeds therefrom), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount except as set forth in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior proviso to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (ab) of the definition of Maximum Incremental Facilities Amountbelow, no Event of Default shall exist on such Increased Amount Date immediately after giving effect (or, if the proceeds of the Incremental Facilities are to such New Loan Commitments, as applicable (and, otherwisebe used to consummate a Permitted Acquisition, no Event of Default under Section 12.1 11.1 or Section 12.5 11.5) shall exist or have occurred and be continuing after giving Pro Forma Effect thereto.
(b) Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limits set forth in paragraph (a) above) and in minimum increments of $1,000,000 in excess thereof (or such other amounts as the Administrative Agent may reasonably agree). Subject to the proviso at the end of this Section 2.14(b), the aggregate amount (after giving Pro Forma Effect thereto and the use of the proceeds thereof) of (X) the Incremental Term Loans incurred or obtained pursuant to this Section 2.14(b), plus (Y) the aggregate principal amount of Permitted Incremental Equivalent Indebtedness incurred or issued under Section 10.1 shall not exceed, as of the date of incurrence or issuance of such Indebtedness, the Maximum Incremental Facilities Amount at such time; provided that Incremental Term Loans may be incurred without regard to the Maximum Incremental Facilities Amount and without regard to whether an Event of Default has occurred and is continuing, to the extent that the net cash proceeds from such Incremental Term Loans are used on the date of incurrence of such Incremental Term Loans (or substantially concurrently therewith) to prepay Term Loans (which prepayment, if an Event of Default is continuing, shall be made on a pro rata basis across all outstanding Types of such Term Loans) (and any such Incremental Term Loans shall be deemed to have been incurred pursuant to this proviso).
(A) The Incremental Term Loans (i) shall rank equal in right of payment with the Initial Term Loans, (ii) no Incremental Facility shall be guaranteed or borrowed by entities other than the Credit Parties, (iii) shall not mature earlier than the Initial Term Loan Maturity Date, (iv) shall not have a shorter weighted average life to maturity than the then remaining Initial Term Loans, (v) shall have a maturity date (subject to clause (iii)), an amortization schedule (subject to clause (iv)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided that, in the event that the Applicable Margins for any Incremental Term Loans are greater than the Applicable Margins for the Initial Term Loans by more than 0.50%, then the Applicable Margins for the Initial Term Loans shall be increased to the extent necessary so that the Applicable Margins for the Initial Term Loans are equal to the Applicable Margins for the Incremental Term Loans minus 0.50%; provided, further, that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the LIBOR Rate, for purposes of calculating the applicable increase (if any) in connection the Applicable Margins for the Initial Term Loans in the immediately preceding proviso, the Applicable Margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated in accordance with a Limited Condition Transactionthe immediately succeeding
(1) with respect to the Initial Term Loans, at to the time extent that the Reference Rate on the Incremental Facility Closing Date is less than 1.00%, the amount of such Increased Amount difference shall be deemed added to the Applicable Margin for the Initial Term Loans solely for the purpose of determining whether an increase in the Applicable Margin for the Initial Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the Reference Rate on the Incremental Facility Closing Date and at is less than the time a definitive agreement is entered into in respect interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such Limited Condition Transaction, there is no Event difference shall be deemed added to the Applicable Margin for the Incremental Term Loans solely for the purpose of Default under Section 12.1 or Section 12.5) determining whether an increase in the Applicable Margin for the Initial Term Loans shall be required and (iiz) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New documentation governing any Incremental Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated may include any Previously Absent Financial Maintenance Covenant so long as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required have been given prompt written notice thereof and this Agreement is amended prior to provide any New Loan Commitmentsor substantially with the incurrence of the Incremental Term Loans to include such Previously Absent Financial Maintenance Covenant for the benefit of each then outstanding Credit Facility.
(bB) On any Increased Amount Date on which New Revolving Credit Commitments are effectedEach notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Incremental Term Loans may be made, subject to the satisfaction prior written consent of the foregoing terms and conditionsBorrower, by any existing Lender (ait being understood that no existing Lender will have an obligation to make a portion of any Incremental Term Loan except as such Lender may expressly agree pursuant to an Incremental Agreement) with respect to New Revolving Credit Commitmentsor by any other bank, each of the Lenders with Revolving Credit Commitments of financial institution, other institutional lender or other investor (any such Class shall assign to each Lender with a New Revolving Credit Commitment (eachother bank, a financial institution or other investor being called an “New Revolving Loan Additional Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto); provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing or Additional Lender’s making such New Revolving Credit Commitment to the extent Incremental Term Loans if such consent, if any, consent would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender or Additional Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions Commitments in respect of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Incremental Term Loans shall be no shorter than become Commitments under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, as appropriate, the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loansother Credit Documents, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured executed by the Collateral on a junior lien basisBorrower, the Guarantors, each Lender agreeing to the Second Lien Intercreditor Agreement.
(e) The pricingprovide such Commitment, interest rate marginsif any, discountseach Additional Lender, premiums, rate floors, feesif any, and amortization schedule applicable to any the Administrative Agent. The Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provision provisions of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment . The effectiveness of any New Revolving Credit Commitments denominated in a currency other than DollarsIncremental Agreement (each, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term LoansIncremental Facility Closing Date”) and the occurrence of any Credit Event pursuant to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower such Incremental Agreement shall provide a notice be subject to the Administrative Agent (who shall provide a copy satisfaction of such notice to each conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Incremental Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are any purpose not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loanprohibited by this Agreement; provided, however, that (xthe proceeds of any Incremental Term Loans incurred as described in the proviso to Section 2.14(b) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except used in accordance with the second to last sentence of Section 5.1(a). terms thereof.
(e) No Lender shall have be obligated to provide any obligation to agree to have any of its Incremental Term Loans of unless it so agrees and the Borrower shall not be obligated to offer any Existing existing Lender the opportunity to provide any Incremental Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were convertedLoans.
(iif) The Borrower may at This Section 2.14 shall supersede any time and from time provisions in Section 2.7 or 13.1 to time request that all or a portion the contrary. For the avoidance of the Revolving Credit Commitments of any Classdoubt, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time provisions of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) may be amended with the borrowing and repayment (other than in connection with a permanent repayment and termination consent of commitments) of Loans with respect the Required Lenders; provided no such amendment shall require any Lender to provide any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended RevolvinIncremental Commitment without such Lender’s consent.
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Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent, elect to Agent request the establishment of (i) one or more (x) additional tranches Classes of term loans or increases in Term Loans additional term loans of the same Class of any existing Class of term loans (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or (yii) additional tranches of revolving loans one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more replacement Classes of revolving credit commitments (the “New Replacement Revolving Credit Commitments”, and, together with the Incremental Term Loans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”), in each case, in U.S. Dollars; provided that (x) subject to Section 1.10, at the time that any such Incremental Term Loan or Incremental Revolving Credit Commitment Increase is made or effected (and after giving pro forma effect thereto), (1) no Event of Default shall have occurred and be continuing and (2) the Borrower would be in pro forma compliance with the Financial Performance Covenants as of the end of the Test Period most recently ended and (y) Replacement Revolving Credit Commitments may only be Incurred pursuant to the proviso to clause (b) below.
(b) Each tranche of Incremental Term Loans, each tranche of Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (it being understood that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and unless otherwise agreed by the Borrower and the Administrative Agent, in minimum increments of $1,000,000 in excess thereof), and, subject to the proviso at the end of this Section 2.14(b), the aggregate amount of (x) the Incremental Term Loans, the Incremental Revolving Credit Commitment Increases and the Replacement Revolving Credit Commitments (in each case after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to Section 1.10, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated Total Net Leverage Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of such Test Period, that is no greater than 3.00:1.00 (this clause (B), the “Incremental Ratio Debt Amount” and, together with the New Term Loan CommitmentsIncremental Base Amount, the “New Loan CommitmentsIncremental Limit”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect Incremental Term Loans may be Incurred without regard to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities AmountLimit, no without regard to whether an Event of Default shall exist has occurred and is continuing and, without regard to any minimums set forth in this Section 2.14(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of Incurrence of such Increased Amount Date immediately after giving effect Incremental Term Loans (or substantially concurrently therewith) to such New Loan either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 5.2(a)(i) or (y) permanently reduce the Revolving Credit Commitments, as applicable Replacement Revolving Credit Commitments or Extended Revolving Credit Commitments in accordance with the procedures set forth in Section 5.2(e)(ii) (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 and any such Incremental Term Loans shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5deemed to have been Incurred pursuant to this proviso) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Replacement Revolving Credit Commitments may be incurred provided without regard to the Incremental Limit, without regard to the minimums set forth in Dollars the first sentence of this Section 2.14(b) and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments, Extended Revolving Credit Commitments or other Replacement Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Replacement Revolving Credit Commitments so provided (and any other currency at such Replacement Revolving Credit Commitments shall be deemed to have been Incurred pursuant to this proviso);
(i) The Incremental Term Loans (A) shall rank equal in right of payment and security with the election Initial Term Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall be guaranteed only by the Credit Parties on a pari passu basis, (B) shall not mature earlier than the Initial Term Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, AHYDO Catch Up Payments, funding discounts, original issue discounts and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and agreed the lenders of the Incremental Term Loans; and (E) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that, except with respect to matters contemplated by clauses (B), (C) and (D) above, any differences shall be reasonably satisfactory to the Administrative Agent in its sole discretion. No Lender shall be required (except for covenants and other provisions applicable only to provide any New Loan Commitmentsthe periods after the Latest Maturity Date).
(bii) On any Increased Amount Date on which New The Incremental Revolving Credit Commitment Increase shall be treated the same as the Class of Revolving Credit Commitments are effectedbeing increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase (without any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) The Replacement Revolving Credit Commitments (A) shall rank equal in right of payment and security with the Revolving Credit Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall be guaranteed by only the Credit Parties on a pari passu basis, (B) shall not mature earlier than the Revolving Credit Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and the lenders of such commitments, (D) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments, the swingline lender and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to the Swingline Loans and Letters of Credit with respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (E) may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that except with respect to matters contemplated by clauses (B), (C), (D) and (E) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date).
(d) Each notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Replacement Revolving Credit Commitments. Incremental Term Loans may be made and Incremental Revolving Credit Commitment Increases and Replacement Revolving Credit Commitments may be provided, subject to the satisfaction prior written consent of the foregoing terms and conditionsBorrower (not to be unreasonably withheld or delayed), by any existing Lender (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each it being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation to make a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each portion of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitmentsany Incremental Term Loan, and (b) no existing Lender with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under will have any obligation to provide a New portion of any Incremental Revolving Credit Commitment (a “New Increase or any Replacement Revolving Credit LoanCommitments) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or such Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely with respect to any Incremental Revolving Credit Commitment Increases or Replacement Revolving Credit Commitments, the Swingline Lender and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s or Additional Lender’s providing such New Incremental Revolving Credit Commitment to the extent Increases or Replacement Revolving Credit Commitments if such consent, if any, consent would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender or Additional Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Commitments in respect of Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans Incremental Revolving Credit Commitment Increases and Replacement Revolving Credit Commitments shall become Commitments (or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable an Incremental Revolving Credit Maturity Date of each Series shall Commitment Increase to be no earlier than the provided by an existing Lender with a Revolving Credit Maturity DateCommitment, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New increase in such Lender’s applicable Revolving Credit Commitments are securedCommitment) under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, are not secured as appropriate, the other Credit Documents, executed by a Lien on the Borrower, each Lender agreeing to provide such Commitment, if any, and each Additional Lender, if any, so long as any assets Additional Lender shall have complied with the provisions of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior Section 13.6(b)(ii)(C) and delivered such forms to the Lien securing Administrative Agent, and acknowledged by the Obligations, Administrative Agent (such acknowledgement not to be unreasonably withheld or that is unsecured, shall be established as a separate facility and be subject, in the case of delayed). The Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provision provisions of this Section 2.14, including, without limitation, any amendments with respect to alternative currency (including (i) in connection with the establishment of any New an Incremental Revolving Credit Commitments denominated in Commitment Increase, to reallocate Revolving Credit Exposure on a currency other than Dollarspro rata basis among the relevant Revolving Credit Lenders, any amendments that (ii) [reserved], (iii) to increase the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans Effective Yield of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such the applicable Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the extent necessary in order to ensure that any applicable Class of Incremental Term Loans are “fungible” with any applicable existing Class of Term Loans may be automatically increasedLoans), the amortization schedule may be adjusted and (iv) to add or extend, in either case, any other “call protection, covenant or other provision may be made more favorable to ” for the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility benefit of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an applicable existing Class of Term Loans in respect thereof).
Loans) and/or (iv) [reserved]. The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans effectiveness of any Class Incremental Agreement (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term LoansIncremental Facility Closing Date”) and the occurrence of any Credit Event pursuant to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower such Incremental Agreement shall provide a notice be subject to the Administrative Agent (who shall provide a copy satisfaction of such notice to each conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Incremental Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than and Incremental Revolving Credit Commitment Increases and Replacement Revolving Credit Commitments for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are any purpose not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loanprohibited by this Agreement; provided, however, that (x) the scheduled final maturity date proceeds of any Incremental Term Loans Incurred, and any Replacement Revolving Credit Commitments provided, in either case as described in the proviso to Section 2.14(b), shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except used in accordance with the second to last sentence of Section 5.1(a). terms thereof.
(i) No Lender shall have be obligated to provide any obligation to agree to have any of its Incremental Term Loans of or Incremental Revolving Credit Commitment Increases or Replacement Revolving Credit Commitments unless it so agrees and the Borrower shall not be obligated to offer any Existing Term Loan Class converted into Extended existing Lender the opportunity to provide any Incremental Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were convertedor Incremental Revolving Credit Commitment Increases or Replacement Revolving Credit Commitments.
(ii) The Borrower may at any time and from time to time request that all or a portion of Upon each increase in the Revolving Credit Commitments of any ClassClass pursuant to this Section 2.14, any Extended each Lender with a Revolving Credit Commitments and/or any New Commitment 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 Commitments, each existing at the time of such request Commitment Increase (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and related Existing each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving pro forma effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment of such Class (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of such Class of all Lenders represented by such ▇▇▇▇▇▇’s Revolving Credit Commitment of such Class. If, on the date of such increase, there are any Revolving Credit Loans together being referred to as an “Existing of such Class outstanding, such Revolving Credit Class”) Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment Increase be converted to extend prepaid from the termination date thereof and the scheduled maturity date(s) proceeds of any payment of principal with respect to all or a portion of any principal amount of additional Revolving Credit Loans related to made hereunder (reflecting such Existing increase in Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments Class), which such request prepayment shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be accompanied by accrued interest on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date Loans of the Existing Revolving Credit such Class that are not being extended) to be agreed between the Borrower prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lender providing Extended Revolving Credit Commitments; providedLenders hereby agree that the minimum borrowing, however, that (x) pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the scheduled final maturity date shall be extended and (y)transactions effected pursuant to the immediately preceding sentence.
(Ag) the interest margins with respect This Section 2.14 shall supersede any provisions in Section 2.7 or 13.1 to the Extended Revolving Credit Commitments may be higher or lower than contrary. For the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional feesavoidance of doubt, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvinprovisions of
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Incremental Facilities. (a) The Borrower may, at any time or from time to time after the Closing Date, by written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect to request the establishment of (i) one or more (x) additional tranches of term loans (the “Incremental Term Loans”) or (ii) one or more increases in the amount of the Revolving Credit Commitments; (each such increase, an “Incremental Revolving Commitment Increase”); together with the Incremental Term Loans of any Class (the commitments theretoLoans, the “New Term Loan CommitmentsIncremental Facilities”), and/or provided that (yA) additional tranches of revolving loans or increases in Revolving Credit Commitments both at the time of any Class such request and after giving effect to the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan or Incremental Revolving Commitment Increase is made or effected (and after giving effect thereto), the “New conditions in Section 7.1 shall be satisfied and (B) the Full Availability Date shall have occurred and (C) solely with respect to an Incremental Revolving Credit Commitments” andCommitment Increase, together the Borrower shall be in compliance with the New covenant set forth in Section 10.9 for the most recently ended fiscal quarter determined on a Pro Forma Basis as of the date of the making of such Incremental Revolving Commitment Increase.
(b) Each tranche of Incremental Term Loan Commitments, the “New Loan Commitments”), by Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and that is not less than $5,000,000 individually 100,000,000 (or provided that such lesser amount as (x) may be approved by less than $100,000,000 if such amount represents all remaining availability under the Administrative Agent or limit set forth in the next sentence).
(yc) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that the The aggregate principal amount of all New Revolving Credit Commitments Incremental Facilities shall not exceed the sum of (1) $35,000,000 during 750,000,000 plus (2) if the term RCT Carve Out Support Rejection Notice shall have been issued and delivered prior to the Delayed-Draw Termination Date, the Delayed-Draw Term Facility Reduction Amount determined on a Pro Forma Basis after the incurrence of this Agreement. In each casesuch Incremental Facility.
(d) The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, such New Loan Commitments Delayed-Draw Term Loans and all other Term Loans (ii) shall become effective as not mature earlier than the Latest Maturity Date, (iii) shall have interest rates, interest margins, rate floors, fees, funding discounts, premiums and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the applicable Increased Amount Dateother Term Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent; provided, further that the Yield on any tranche of Incremental Term Loans does not exceed the Yield on the initial Term Loans or the Delayed Draw Term Loans by more than 50 basis points per annum, unless the interest rate on the initial Term Loans and the Delayed Draw Term Loans, as applicable, is increased on or prior to the date of the incurrence of such Incremental Term Loans in order to comply with this proviso.
(e) [Reserved].
(f) [Reserved].
(g) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Term Loans may be made, and Incremental Revolving Commitment Increases may be provided, by any existing Lender (it being understood that (i) with respect no existing Lender will have an obligation to New Loan Commitments incurred in reliance make a portion of clause (a) of the definition of Maximum any Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) Facility and (ii) the New Loan Commitments Borrower shall be effected pursuant have no obligation to one or more Joinder Agreements executed and delivered by offer any existing Lender the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required opportunity to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving such Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating theretoFacility); provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayedwithheld) to such New Revolving Loan Lender’s or Additional Lender’s making such Incremental Term Loans or providing such New Incremental Revolving Credit Commitment to the extent Increases if such consent, if any, consent would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender or Additional Lender.
(ch) On any Increased Amount Date on which any New Term Loan Commitments in respect of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Incremental Revolving Commitment Increases shall become Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of an Incremental Loans secured Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit K to this Agreement) and, as appropriate, the other Credit Documents, executed by the Collateral on a junior lien basisBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent (notwithstanding any provision to the Second Lien Intercreditor contrary in Section 13.1 of this Agreement.
). The Incremental Amendment may, subject to Section 2.14(c) and (ef)) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement maymay be, without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provision provisions of this Section 2.14(notwithstanding any provision to the contrary in Section 13.1 of this Agreement). The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of the conditions in Section 7.1 and such other conditions as the parties thereto shall agree. The Borrower may use the proceeds of the Incremental Term Loans and Incremental Revolving Commitment Increases for any purpose not prohibited by this Agreement.
(i) (i) unless it so agrees, includingthe Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Facility. If, without limitationon the date of any increase in the Revolving Credit Commitments pursuant to an Incremental Revolving Commitment Increase, there are any Revolving Credit Loans 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 Revolving Credit Loans 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 costs incurred by any Lender in accordance with Section 2.11. 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.
(ii) At the option of the Borrower and the Lenders providing such Incremental Revolving Commitment Increases, any amendments Incremental Revolving Commitment Increases may be in the form of one or more separate classes of revolving credit commitments (the “New Revolving Credit Commitments”) which shall constitute a separate Class of Commitments from the Revolving Credit Commitments and/or any other New Revolving Credit Commitments (each such separate Class of New Revolving Credit Commitments, a “New Revolving Credit Series” and each Loan thereunder, a “New Revolving Credit Loan”) and the related Loans shall constitute a separate Class of Loans from the Revolving Credit Loans, and/or any other New Revolving Credit Loans (it being understood that New Revolving Credit Commitments of a single New Revolving Credit Series may be established on more than one date); provided that:
(A) Each tranche of New Revolving Credit Commitments shall be in an aggregate principal amount of not less than $100,000,000 (provided that such amount may be less than $100,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.14(b) above).
(B) the terms of such New Revolving Credit Commitments, except for (w) the tenor of the New Revolving Credit Commitments (which shall have a scheduled expiration date no earlier than the Maturity Date), (x) the size of any letter of credit subfacilities under such New Revolving Credit Commitments, (y) the applicable interest rates, interest margins, rate floors, premiums, funding discounts and fees payable with respect to alternative currency such New Revolving Credit Commitments and (z) the borrowing, repayment and termination of Commitment procedures (in each case which shall be as specified in the applicable Incremental Amendment), shall be similar to the terms of the Revolving Credit Commitments (unless otherwise consented to by the Administrative Agent); provided that the Yield on the New Revolving Credit Commitments does not exceed the Yield on the initial Revolving Credit Commitments by more than 50 basis points, unless the interest rate on the initial Revolving Credit Commitments is increased on or prior to the date of the incurrence of such New Revolving Credit Commitments in order to comply with this proviso.
(C) in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollarsthat will include letter of credit subfacilities, any amendments that amendment to this Agreement pursuant to this Section 2.14(i)(ii) may include provisions relating to letters of credit issued thereunder, which issuances shall be on terms similar (except for the Borrower determine are necessary overall size of such subfacilities and the identity of the letter of credit issuer, and borrowing, repayment and termination of commitment procedures, in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase each case which shall be specified in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable applicable Incremental Amendment) to the applicable existing Lenders without the consent terms relating to Letters of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal Credit with respect to all the Revolving Credit Commitments or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice otherwise reasonably acceptable to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving applicable letter of credit loans issuer thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Effective Date, by written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect to request the establishment of (i) one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class advances (the “New Revolving Incremental Term Advances”) to be used as General Working Capital Credit CommitmentsIncreases or Ontelaunee Credit Increases, (ii) one or more tranches of working capital commitments (each, an “Incremental Working Capital Facility”) to be used as General Working Capital Credit Increases or Ontelaunee Credit Increases or (iii) one or more tranches of funded letter of credit commitments (each a “Synthetic L/C Facility” and, together with the New any Incremental Term Loan CommitmentsAdvances and Incremental Working Capital Facility, the referred to herein as a “New Loan CommitmentsCredit Increase”); provided that (A) upon the effectiveness of any Incremental Amendment referred to below, by no Default or Event of Default shall exist and at the time that any such Incremental Term Advance is made (and after giving effect thereto) no Default or Event of Default shall exist, (B) the Borrower may make a maximum of four requests for a Credit Increase, and (C) the Borrower shall have received a Ratings Reaffirmation. Each Credit Increase shall be in an aggregate principal amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and that is not less than $5,000,000 individually 25,000,000 (or provided that such lesser amount as may be less than $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 (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that the aggregate principal amount of all New Revolving General Working Capital Credit Commitments Increases shall not exceed $35,000,000 during 100,000,000 when taken together with any other Debt incurred pursuant to Section 5.02(b)(v), (y) Ontelaunee Credit Increases shall not exceed $165,000,000 when taken together with any other Debt incurred pursuant to Section 5.02(b)(iv) and (z) Synthetic L/C Facilities shall not exceed $650,000,000 when taken together with any other Debt incurred pursuant to Section 5.02(b)(iii).
(b) Any Incremental Term Advances and any Synthetic L/C Facility (i) shall rank pari passu in right of payment and of security with the term of this Agreement. In each caseother Advances, such New Loan Commitments (ii) shall become effective as not mature earlier than the Maturity Date and shall have a Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of the applicable Increased Amount DateAdvances, (iii) shall be treated substantially the same as the Advances (in the case of the Incremental Term Advances, including with respect to mandatory and voluntary prepayments), and (iii) if a Yield Differential exists, the LSP Gen Finance Second Lien Credit Agreement Applicable Margin then in effect for Eurodollar Rate Advances shall be increased by the amount of such Yield Differential. The Incremental Working Capital Facility (i) shall rank pari passu in right of payment and of security with the Facility, and (ii) if a Yield Differential exists, the Applicable Margin then in effect for Eurodollar Rate Advances shall be increased by the amount of such Yield Differential.
(c) Each notice from the Borrower pursuant to this Section 2.16 shall set forth the requested amount and proposed use and terms of the relevant Credit Increases. Credit Increases may be provided by any existing Lender or by any other bank or financial institution (any such bank or other financial institution being called an “Additional Lender”); provided that (i) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (such consent not to be unreasonably withheld or delayed) to such New Revolving Loan Lenders or Additional Lender’s making such Incremental Term Advances or providing such New Revolving Credit Commitment to the extent such consentIncremental Working Capital Facility or Synthetic L/C Facility, if any, such consent would be required under Section 14.6(b) for in connection with an assignment of Revolving Loans Advances or Revolving Credit Commitments, as applicable, applicable to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, or Additional Lender and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant theretoany Synthetic L/C Facility, an Additional Lender shall have agreed to act as issuing bank therefor.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term LoansCredit Increases shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as applicableappropriate, the other Loan Documents, executed by more than (i) in the case of any Borrower, each Lender agreeing to provide such New Term Loans denominated in U.S. DollarsCommitment, 0.50%if any, each Additional Lender, if any, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) Administrative Agent. The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement Amendment may, without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Loan Documents as may be necessary or appropriate, appropriate in the reasonable opinion of the Administrative Agent, Agent and the Borrower to effect the provision provisions of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment 2.16. The effectiveness of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that Incremental Amendment shall be subject to the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors satisfaction on the existing Class date thereof of Term Loans may be automatically increasedeach of the conditions set forth in Sections 3.01(n), the amortization schedule may be adjusted (o) and any call protection, covenant or (p) and such other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by conditions as the parties hereto that the Administrative Agent will not be making, and thereto shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof)agree.
(ie) The Borrower may at will use the proceeds of (i) any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case General Working Capital Credit Increase solely as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause definition thereof and (A), in each case, to ii) any Ontelaunee Credit Increase solely as contemplated by the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). definition thereof.
(f) No Lender shall have be obligated to provide any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were convertedCredit Increase, unless it so agrees.
(iig) The Borrower may at This Section 2.16 shall supersede any time and from time to time request that all provision in Section 2.13 or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice 9.01 to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvincontrary.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, by written notice to Administrative Agent, elect to request the establishment of Borrowers and any one or more Lenders (xincluding New Lenders as defined below) additional tranches may from time to time agree that such Lenders shall make, obtain or increase the amount of term loans or increases in their Incremental Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Incremental Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject by executing and delivering to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in Administrative Agent an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that Increased Facility Activation Notice specifying (i) the applicable New Term Loan Maturity Date amount of each Series shall be no earlier than such increase and the Initial Term Loan Maturity DateFacility or Facilities involved, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, applicable Increased Facility Closing Date and (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if (x) the Effective Yield applicable Incremental Term Maturity Date, (y) the amortization schedule for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Incremental Term Loans, or prior New and (z) the Applicable Margin for such Incremental Term LoansLoans which, as applicablein the cases of each of the foregoing clauses (x), by more than (y) and (z) shall comply with Section 2.15(d) below. Notwithstanding the foregoing, (i) in without the case consent of any such New the Required Lenders, the aggregate amount of borrowings of Incremental Term Loans denominated in U.S. Dollars, 0.50%, and Incremental Revolving Commitments obtained after the Second Restatement Date pursuant to this paragraph shall not exceed $30,000,000 and the aggregate Incremental Revolving Commitment shall not exceed $7,500,000 and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date each increase effected pursuant to this paragraph shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) minimum amount of this Section 2.14(h) below) at least $10,000,000 and (y) (A) the interest margins with respect to the Extended Term Loans no more than three Increased Facility Closing Dates may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated selected by the preceding clause (A), in each case, to Borrowers after the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a)Second Restatement Date. No Lender shall have any obligation to agree to have participate in any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary increase described in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than 2.15 unless it agrees to do so in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvinits sole discretion.
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Incremental Facilities. (a) The Borrower mayCompany may on one or more occasions, by written notice to the Administrative Agent, elect to request (i) during the Availability Periodfollowing the First Amendment Effective Date, the establishment of one Incremental Revolving Commitments and/or (ii) following the ClosingFirst Amendment Effective Date, the establishment of Incremental Term Commitments, in an aggregate amount for all such Incremental Commitments not to exceed the sum of (A) $300,000,000 less the aggregate amount of Incremental Equivalent Debt incurred by the Company in reliance on this clause (A) plus (B) such amount as would not cause the Secured Leverage Ratio, computed on a Pro Forma Basis (but without netting the cash proceeds thereof) as of the last day of the fiscal quarter most recently ended prior to the effective date of the relevant Incremental Facility Agreement in respect of which financial statements have been delivered pursuant to Section 5.01(a) or more (xb), to exceed, 3.50 to 1.00 plus (C) additional tranches of term loans or increases in Term Loans the amount of any Class (the commitments thereto, the “New optional prepayment of any Term Loan Commitments”), in accordance with Section 2.04(a) and/or (y) additional tranches the amount of revolving loans or increases in any permanent reduction of any Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments” and, together in accordance with the New Term Loan Commitments, the “New Loan Commitments”Section 2.05(a), by an in each case, after the First Amendment Effective Date less the aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved Equivalent Debt incurred by the Administrative Agent or Company in reliance on this clause (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such dateC); provided that for purposes of the aggregate principal pro forma calculations required by clauses (A) and, (B) and (C) above, (x) the Incremental Revolving Commitments that would become effective in connection with the requested Incremental Facility shall be assumed to be fully drawn and (y) the calculation of clause (B) above shall be determined without giving effect to any incurrence under clause (A) or (C) above that is incurred substantially simultaneously with amounts under clause (B) above; provided, further, that, in the case of Incremental Term Commitments established to finance a Limited Condition Acquisition, the condition set forth in this clause (B) may, at the Company’s option, as set forth in the applicable Incremental Facility Agreement, be tested at the signing of the definitive agreement to consummate such Limited Condition Acquisition or at the closing thereof. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of all New the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person that the Company proposes to become an Incremental Lender, if such Person is not then a L▇▇▇▇▇, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Credit Lender, each L/C Issuer.
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, identical to those of the Revolving Credit Commitments and Revolving Credit Loans and other extensions of credit made thereunder, and shall not exceed $35,000,000 during the term of this Agreement. In each case, be treated as a single Class with such New Loan Revolving Commitments shall become effective as of the applicable Increased Amount Dateand Loans; provided that (i) with respect to New Loan the maturity date of any Incremental Revolving Commitments incurred in reliance of clause (a) shall be no sooner than, but may be later than, the Maturity Date of the definition Revolving Credit Facility, (ii) there shall be no mandatory reduction of Maximum any Incremental Facilities AmountRevolving Commitments prior to the Maturity Date for the Revolving Credit Facility and (iii) the up-front fees applicable to any Incremental Revolving Facility shall be as determined by the Company and the Incremental Revolving Credit Lenders providing such Incremental Facility. The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, no Event except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to those of Default the Term B Commitments and the Term B Loans; provided that (i) the up-front fees, interest rates and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall exist on such Increased Amount Date immediately after giving effect to such New Loan be determined by the Company and the Incremental Term Lenders providing the relevant Incremental Term Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments weighted average life to maturity of any Incremental Term Loans that are not Incremental Term A Loans shall be no shorter than, but may be longer than, the remaining weighted average life to maturity of the then outstanding Term B Loans (determined without giving effect to any prepayments that reduce amortization), (iii) no Incremental Term Maturity Date in respect of Incremental Term Loans that are not Incremental Term A Loans shall be earlier than, but may be later than, the Maturity Date for the Term B Loans, (iv) no Incremental Term Maturity Date in respect of Incremental Term A Loans shall be earlier than, but may be later than, the Maturity Date for the Revolving Credit Facility and (v) if the Weighted Average Yield applicable to any Incremental Term Loans exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as amended through the date of such calculation, with respect to the Term B Loans, then the Applicable Rate then in effect for the Term B Loans shall automatically be increased to eliminate such excess; provided, however, that any interest in the Applicable Rate required pursuant to the foregoing as a result of any interest rate “floor” shall be effected solely through the establishment of or increase to an interest rate “floor”. Notwithstanding the foregoing, the terms and conditions applicable to an Incremental Facility may include additional or different financial or other covenants or other provisions that are agreed between the Company and the Lenders providing such Incremental Facility which are applicable only during periods after the Latest Maturity Date that is in effect on the date of effectiveness of such Incremental Facility. Any Incremental Term Facilities established pursuant to one or more Joinder Agreements executed and delivered by an Incremental Facility Agreement (other than any Incremental Term Facilities having terms identical to the Borrower and Administrative Agent and such lenders providing Term B Loans made on the New Loan CommitmentsClosingFirst Amendment Effective Date) that have identical terms, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New any Incremental Term Loans made on an Increased Amount Date shallthereunder, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, shall be designated as (a) a separate series (each a “Series”) of New Incremental Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Commitments and Incremental Term Loans for all purposes of this Agreement. Any New Notwithstanding anything to the contrary herein, each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the other Loan Document Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Commitments and Incremental Facilities and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date; provided that, in the case of Incremental Term Commitments established to finance a Limited Condition Acquisition, except with respect to the requirement that there not have occurred and be continuing any Default under paragraph (a) or (b) of Article VII or any Default with respect to any Borrower under paragraph (i) or (j) of Article VII (which must be true both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans thereunder to be made on the date of effectiveness thereof), any condition set forth in this clause (i) may, at the Company’s option, as set forth in the applicable Incremental Facility Agreement, be tested at the signing of the agreement to make such Limited Condition Acquisition or on the date of effectiveness of such Incremental Term Commitments, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be made and shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date; provided that, in the case of Incremental Term Commitments established to finance a Limited Condition Acquisition, the condition set forth in this clause (ii) may, at the Company’s option, be modified in a manner determined by the Company and the Incremental Lenders providing such Incremental Term Loan Commitments, as set forth in the applicable Incremental Facility Agreement, such that the only representations and warranties the accuracy of which is a condition to the effectiveness of such Incremental Term Commitments are the Specified Representations, (iii) after giving effect to such Incremental Commitments and the making of Loans pursuant thereto and the use of proceeds thereof (and based on the assumption that borrowings are effected in the full amount of any Incremental Revolving Commitments), the Company shall be in compliance on a Pro Forma Basis with the covenant contained in Section 6.13 recomputed as of the last day of the most-recently ended fiscal quarter of the Company for which financial statements shall have been delivered pursuant to Section 5.01(a) or New Revolving Credit 5.01(b); provided that, in the case of Incremental Term Commitments may be incurred established to finance a Limited Condition Acquisition, the condition set forth in Dollars and any other currency this clause (iii) may, at the election Company’s option, as set forth in the applicable Incremental Facility Agreement, be tested at the signing of the Borrower agreement to make such Limited Condition Acquisition or on the date of effectiveness of such Incremental Term Commitments, (iv) the Company shall make any payments required to be made pursuant to Section 2.18 in connection with such Incremental Commitments and agreed the related transactions under this Section and (v) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in its sole discretionconnection with any such transaction, including a certificate of a Financial Officer to the effect set forth in clauses (i), (ii) and (iii) above, together with reasonably detailed calculations demonstrating compliance with clause (iii) above. No Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section; provided that to the extent that any term of any such amendment could not be approved as an amendment of this Agreement by the Lenders providing such Incremental Commitments voting a single Class without the approval of any other Lender, such amendment will be subject to the approval of the requisite Lenders required under this Agreement.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be required deemed to provide be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any New Loan CommitmentsIncremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Aggregate Revolving Credit Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Credit Commitment”. Upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Credit Lender holding such Commitment, and the Applicable Percentage of all the Revolving Credit Lenders, shall automatically be adjusted to give effect thereto.
(be) On the date of effectiveness of any Increased Amount Date on which New Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class Lender shall assign to each Lender with a New Incremental Revolving Credit Commitment (eachLender holding such Incremental Revolving Commitment, a “New Revolving Loan Lender”) and each of the New such Incremental Revolving Loan Lenders Credit Lender shall purchase from each of the Lenders with Revolving Credit Commitments of such ClassLender, at the principal amount thereofthereof (together with accrued interest), such interests in the Revolving Credit Loans and participations in Letters of Credit outstanding on such Increased Amount Date date as shall be necessary in order that, after giving effect to all such assignments and purchases, the such Revolving Credit Loans and participations in Letters of such Class Credit will be held by existing all the Revolving Credit Lenders and New (including such Incremental Revolving Loan Lenders Credit Lenders) ratably in accordance with their Revolving Credit Commitments of such Class Applicable Percentages after giving effect to the addition effectiveness of such New Incremental Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan LenderCommitment.
(cf) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject Subject to the satisfaction of the foregoing terms and conditionsconditions set forth herein and in the applicable Incremental Facility Agreement, (i) each Lender with a New holding an Incremental Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) Company in an amount equal to its New such Incremental Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, date specified in the case of such Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Facility Agreement.
(g) Each Joinder Agreement may, without The Administrative Agent shall notify the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed promptly upon receipt by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, notice from the Company referred to in Section 2.21(a) and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans effectiveness of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so convertedIncremental Commitments, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to in each of case advising the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth details thereof and, in the proposed terms case of effectiveness of any Incremental Revolving Commitments, of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion Applicable Percentages of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” Lenders after giving effect thereto and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments assignments required to be established, which shall be on terms substantially similar made pursuant to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (ySection 2.21(e)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin.
Appears in 1 contract
Sources: Credit Agreement (NCR Atleos Corp)
Incremental Facilities. (a) The Borrower may, by written notice to Administrative Agent, elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments, subject, if applicable, to the proviso to Section 2.14(b); provided that any Lender offered or approached to provide all or a portion of the aggregate principal amount of all New Revolving Credit Loan Commitments shall not exceed $35,000,000 during the term of this Agreementmay elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to no Event of Default (or, where waived by the Lenders providing the New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amountconnection with an acquisition or investment subject to customary “funds certain” conditions, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date immediately before or after giving effect to such New Loan Commitments, as applicable (andapplicable, otherwiseand subject to Section 1.12, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin#89847286v15
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, by written notice to Administrative Agent, elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and or from time to time request that all or a portion of after the Revolving Credit Commitments of any ClassClosing Date, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a by notice to the Administrative Agent (who whereupon the Administrative Agent shall provide promptly deliver a copy of such notice to each of the Lenders Lenders), request one or more tranches of term loans (each an “Incremental Term Facility”) or one or more additional revolving facilities or an increase in the applicable Class amount of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of Facility (each such additional facility or increase being an “Incremental Revolving Facility”; together with the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; providedIncremental Term Facilities, howevereach an “Incremental Facility”), provided that (xi) at the scheduled final maturity date shall be extended time and (y)
(A) after the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu effectiveness of any increased margins contemplated by the preceding clause Incremental Amendment referred to below, no Default or Event of Default shall have occurred and be continuing (A)or, in each case, to the extent provided event such Incremental Facility is incurred in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 connection with a Permitted Acquisition or otherwiseInvestment permitted hereunder, (1) no Default or Event of Default shall have occurred and be continuing at the borrowing and repayment (other than in connection with time a permanent repayment and termination of commitments) of Loans with respect commitment to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments consummate such Permitted Acquisition or Investment is signed and (2) no Extended RevolvinDefault or Event of Default under Section 6.01(a) or (f) shall have occurred and be continuing at the time such Permitted Acquisition or Investment is consummated), and (ii) the aggregate principal amount of the Incremental Facilities shall not exceed the greater of (x) (A) $750,000,000 less (B) the aggregate principal amount of Incremental Facilities and Incremental Equivalent Debt incurred or issued in reliance on clause (x)(A) above plus (y) an unlimited amount if, after giving effect thereto (assuming on the effective date thereof (1) the funding in full of an Incremental Revolving Facility and (2) the proceeds from the funding of such Incremental Facility shall not be netted against the applicable amount of Consolidated Total Debt for purposes of the calculation of the First Lien Net Leverage Ratio set forth in this paragraph below), the First Lien Net Leverage Ratio determined on a pro forma basis would not exceed 1.50:1.00 (the sum of the amounts specified in this clause (ii) (less the aggregate principal amount of any Incremental Facility that has become effective on or prior to the date of determination) the “Available Incremental Amount”). Each Incremental Facility shall be in an aggregate principal amount that is not less than $50,000,000 unless approved by the Administrative Agent (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the preceding sentence).
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Dana Holding Corp)
Incremental Facilities. (a) The Borrower may, by written Section 2.9.1 Upon at least 5 days’ notice to the Administrative Agent, elect to request at any time after the establishment of one or Closing Date but on not more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 five occasions during the term of this Agreement. In each case, such New the Borrowers may request Additional Term Commitments (which may take the form of an increase to the then-existing Term Loan or an Additional Term Loan) or Additional Revolving Commitments shall become effective as of (collectively, the applicable Increased Amount Date“Incremental Facilities”); provided that (i) after giving pro forma effect to any such addition, the aggregate amount of Incremental Facilities that have been added pursuant to this Section 2.9 shall not exceed (x) $25,000,000 (or the equivalent thereof in Canadian Dollars) plus (y) if after giving pro forma effect thereto the First Lien Leverage Ratio (without netting the proceeds of any such Incremental Facility as cash thereunder and assuming in the case of any Additional Revolving Commitments that such Commitments were fully drawn) would be less than 1.90:1 after giving pro forma effect thereto, an additional amount not to exceed $50,000,000, in each case, with respect to New clauses (x) and (y), minus any “Incremental Facilities” under and as defined in the Second Lien Credit Agreement that have been incurred on or prior to the relevant date of determination and (ii) any such addition shall be in an aggregate amount of $15,000,000 (or the equivalent thereof in Canadian Dollars), in the case of Additional Term Loan Commitments incurred Commitments, or $5,000,000 (or the equivalent thereof in reliance Canadian Dollars), in the case of Additional Revolving Commitments, or, in either case, any whole multiple of $1,000,000 in excess thereof (provided that such amount may be less than $15,000,000 or $5,000,000, respectively, (or the equivalent thereof in Canadian Dollars) if such amount represents all remaining availability under the aggregate limit in respect of the Incremental Facilities set forth in clause (ai) to this proviso).
Section 2.9.2 If any Incremental Facilities are added in accordance with this Section 2.9.1, the Administrative Agent and the applicable Borrowers shall determine the effective date (the “Incremental Facility Effective Date”) and the final amount of such addition. The Administrative Agent shall promptly notify the applicable Borrowers and the applicable Lenders of the definition final amount of Maximum such addition and the Incremental Facility Effective Date. Each such Lender may, in its sole discretion, commit to participate in such Incremental Facilities Amount, by forwarding its commitment thereto to the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent. As a condition precedent to such addition: (i) no Default or Event of Default shall exists or would exist on such Increased Amount Date immediately after giving effect to such New the Incremental Facility, (ii) any Additional Revolving Commitments shall be documented as an increase to, and shall be on terms identical to, the Revolving Loan Commitments, as (iii) the maturity date of any Additional Term Loans shall be no earlier than the maturity date of the existing Term Loans, (iv) the weighted average life to maturity of the Additional Term Loans shall be no shorter than the remaining average life to maturity of the existing Term Loans, (v) the yield applicable (andto the Additional Term Loan shall be determined by the Borrowers and the lenders thereunder but provided that if the yield on the Additional Term Loan exceeds the yield at such time on the existing Term Loans by more than 0.50% per annum, otherwisethen the interest rate margins for the then existing Term Loans shall be increased to the extent necessary so that the yield on the existing Term Loans is no lower than a yield 0.50% per annum below that of the Additional Term Loan, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, provided further that in connection with a Limited Condition Transactiondetermining the yield applicable to the Additional Term Loans and the existing Term Loans (x) original issue discount (“OID”), at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 commitment fees or Section 12.5) and upfront fees (ii) the New Loan Commitments which shall be effected pursuant deemed to one or more Joinder Agreements executed and delivered constitute like amounts of OID) payable by the Borrower to the Lenders in the initial primary syndication thereof shall be included (with OID being equated to interest based on an assumed four year life to maturity), (y) customary arrangement, structuring or underwriting fees shall be excluded and (z) if such Additional Term Loans include an interest rate floor greater than the interest rate floor applicable to the Term Loans, such increased amount shall be equated to yield and implemented as a floor or increase in floor on the existing Term Loans, (vi) the Borrowers shall be in pro forma compliance with the financial covenant in Section 7.2.4 after giving pro forma effect to all Incremental Facilities and assuming that all Incremental Facilities have been fully drawn (without netting the proceeds of any such Incremental Facility as cash thereunder), and (vii) the Administrative Agent shall have received customary legal opinions, board resolutions and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject other customary closing certificates (including as to the requirements satisfaction of the conditions set forth in Section 5.4(e). Any New Term Loans made 5.2 and in this Section 2.9 with calculations in reasonable detail) reasonably requested by the Administrative Agent and consistent in form with those delivered on an Increased Amount Date shallthe Closing Date.
Section 2.9.3 On each Incremental Facility Effective Date, at each applicable Lender, assignee under Section 12.10.2(d) or other Person which is participating in the election of the Borrower and agreed to by Lenders providing such New Incremental Facility (i) shall become a “Term Loan CommitmentsLender” or “Revolving Loan Lender”, be designated as (a) a separate series (a “Series”) of New Term Loans applicable, for all purposes of this Agreement or and the other Loan Documents and (bii) as part in the case of any Additional Term Commitment, shall make an Additional Term Loan to the applicable Borrowers in a Series of existing principal amount equal to such Additional Term Loans Commitment, and such Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement. Any New Term Agreement and the other Loan Commitments Documents.
Section 2.9.4 The Incremental Facilities shall be evidenced by an amendment or New Revolving Credit Commitments may be incurred in Dollars supplement to this Agreement executed by the Borrowers (and any other currency at the election of the Borrower and agreed consented to by all other Obligors), the Lenders participating in such Incremental Facilities and the Administrative Agent Agent, and may include the Additional Term Loans, Increased Terms Loans or Additional Revolving Commitments, as applicable, in its sole discretionany mandatory prepayment, pro rata sharing, voting or other provision of this Agreement on terms consistent with the Term Loans and the Revolving Commitments, as applicable. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Incremental Facility Effective Date on which New in respect of any Additional Revolving Credit Commitments are effectedCommitment, subject to the satisfaction of the foregoing terms and conditions, (ai) with respect to New Revolving Credit Commitments, each of the existing Revolving Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New of the Additional Revolving Credit Commitment (eachLenders, a “New Revolving Loan Lender”) and each of the New Additional Revolving Loan Lenders shall purchase from each of the Lenders with existing Revolving Credit Commitments of such ClassLenders, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Incremental Facility Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the such Revolving Credit Loans of such Class will be held by the existing Revolving Credit Lenders and New the Additional Revolving Loan Lenders ratably in accordance with their respective Revolving Credit Loan Commitments of such Class after giving effect to the addition of such New the Additional Revolving Credit Commitments to the Revolving Credit Commitments, Loan Commitments and (b) with respect to New Revolving Credit Commitments, (iii) each New Additional Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposespurposes of this Agreement, a “Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consentLoan”.
Section 2.9.5 Any Additional Term Loans, if any, would be required under Section 14.6(b) for an assignment of Revolving Increased Term Loans or Additional Revolving Credit Commitments, as applicable, made or provided pursuant to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series this Section 2.9 shall be on terms as determined evidenced by the Borrower and set forth one or more entries in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured Register maintained by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were convertedprovisions set forth in this Agreement.
(ii) The Borrower may at Section 2.9.6 This Section 2.9 shall override any time and from time to time request that all provision in Section 4.8 or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice 12.1 to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvincontrary.
Appears in 1 contract
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect to request (i) the establishment addition of one or more (x) additional tranches of term loans (the “Incremental Term Loans”) to the Credit Facilities, (ii) one or more increases in Term Loans the amount of any Class (the commitments thereto, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) the addition of one or more Classes of revolving credit commitments (the “New Additional/Replacement Revolving Credit Commitments” and”, and together with the New Incremental Term Loan CommitmentsLoans and the Incremental Revolving Credit Commitment Increases, the “New Loan Incremental Facilities”; and the commitments in respect thereof are referred to as the “Incremental Commitments”), by an aggregate amount not in excess of ) to the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date)Credit Facilities; provided that, subject to Section 1.10, both at the time of any such request and at the time that the aggregate principal amount of all New any such Incremental Term Loan, Incremental Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (iand after giving effect thereto) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect (or, in the case of any Incremental Facility established to such New Loan Commitments, as applicable (and, otherwisefinance an acquisition permitted hereunder or bona fide Investment, no Event of Default under Section 12.1 11.1 or 11.5) has occurred and is continuing or would exist;
(b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and the aggregate amount of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments shall not exceed, at the time of incurrence thereof and after giving Pro Forma Effect thereto and the use of the proceeds thereof, the Incremental Amount at such time; provided that (i) Incremental Term Loans may be incurred without regard to the Incremental Amount and without regard to whether an Event of Default has occurred and is continuing, to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of incurrence of such Incremental Term Loans to prepay Term Loans in accordance with the procedures set forth in Section 12.5 5.2(a)(i), if applicable, and (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Amount and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments shall exist be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided.
(i) The Incremental Term Loans (A) shall rank pari passu in right of payment and of security with the Amendment No. 58 Initial Term Loans, (B) shall be continuingsecured only by the Collateral, shall be borrowed only by the Borrower and shall be guaranteed only by the Guarantors, (C) shall not mature earlier than the Amendment No. 58 Initial Term Loan Maturity Date, (D) shall not have a shorter Weighted Average Life to Maturity than the then remaining Weighted Average Life to Maturity of the Amendment No. 58 Initial Term Loan Facility, (E) shall have an amortization schedule (subject to clause (D) above), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts and original issue discounts (subject to clause (d) below) and prepayment premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans and (F) may otherwise have terms and conditions different from those of the Amendment No. 58 Initial Term Loans; provided that (except with respect to matters contemplated by subclauses (C), (D) and (E) above) any differences shall be either (1) reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) or (2) consistent market terms and conditions, when taken as a whole, at the time of incurrence or effectiveness of such Incremental Facility (as determined by the Borrower in good faith) (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan Facility, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant is also added for the benefit of all Credit Facilities).; provided further that clauses (C) and (D) shall not apply to the extent such Incremental Term Loans constitute a customary bridge facility, so long as the long-term Indebtedness into which any such customary bridge facility is to be converted or exchanged satisfies the requirements of clauses (C) and (D) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges.
(ii) The Incremental Revolving Credit Commitment Increase shall be treated and have terms that are the same as the Revolving Credit Commitments (including with respect to maturity date thereof) and shall be considered to be part of the Revolving Credit Facility (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Credit Facility may be increased and additional upfront or similar fees may be payable to the Incremental Revolving Credit Commitment Increase Lenders).
(iii) The Additional/Replacement Revolving Credit Commitments (A) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, (B) shall be secured only by the Collateral, shall be borrowed only by the Borrower and shall be guaranteed only by the Guarantors, (C) shall not mature earlier than the Revolving Credit Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Credit Maturity Date, (D) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts and original issue discounts (subject to clause (d) below) and prepayment premiums as determined by the Borrower and the lenders of such commitments, (E) shall contain borrowing, repayment and termination of commitment procedures as determined by the Borrower and the lenders of such commitments, (F) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to Swingline Loans and Letters of Credit with respect to the Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (G) may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that (except with respect to matters contemplated by clauses (C), (D), (E) and (F) above) any differences shall be either (1) reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) or (2) consistent market terms and conditions, when taken as a whole, at the time of incurrence or effectiveness of such Incremental Facility (as determined by the Borrower in good faith) (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Additional/Replacement Revolving Credit Commitments, no consent shall be required from the Administrative Agent or any other Lenders to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility).
(d) Notwithstanding Sections 2.14(c)(i) and 2.14(c)(iii), in the event that the interest rate margins for any Incremental Term Loan Facility denominated in Dollars that is broadly syndicated and incurred pursuant to clause (x) of the definition of “Incremental Amount” are higher than the interest rate margins for the Amendment No. 58 Initial Term Loan Facility by more than 50 basis points, then the Applicable Margin for the Amendment No. 58 Initial Term Loan Facility shall be increased to the extent necessary so that the applicable interest rate margins equal the interest rate margins for such Incremental Term Loan Facility minus 50 basis points; provided, further, that in determining the interest rate margins applicable to any Incremental Term Loan Facility or the Amendment No. 58 Initial Term Loan Facility (x) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such Incremental Term Loan Facility or the Amendment No. 58 Initial Term Loan Facility in the initial primary syndication thereof and any credit spread or other similar adjustment shall be included as additional interest (with OID or upfront fees being equated to interest based on assumed four-year life to maturity), (y) customary arrangement or commitment fees payable to any of the Lead Arrangers (or itsand/or the Bookrunner (or their respective Affiliates) in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 Amendment No. 58 Initial Term Loan Facility or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed arrangers or bookrunners (or their Affiliates) of any Incremental Term Loan Facility shall be excluded and delivered (z) (1) with respect to the Amendment No. 58 Initial Term Loan Facility, to the extent that Adjusted Term SOFR for a three month interest period on the closing date of any such Incremental Term Loan Facility is less than 0.50% per annum, the amount of such difference shall be deemed added to the Applicable Margin for the Amendment No. 58 Initial Term Loans solely for the purpose of determining whether an increase in the Applicable Margin for the Amendment No. 58 Initial Term Loans shall be required, and (2) with respect to the Incremental Term Loan Facility, to the extent that Adjusted Term SOFR for a three month interest period on the closing date of any such Incremental Term Loan Facility is less than the interest rate floor, if any, applicable to any such Incremental Term Loan Facility, the amount of such difference shall be deemed added to the interest rate margins for the Loans under the Incremental Term Loan Facility solely for the purpose of determining whether an increase in the Applicable Margin for the Amendment No. 58 Initial Term Loans shall be required; provided, further, that this Section 2.14(d) shall not apply to any Incremental Term Loans (A) incurred on or after the date that is six months following the Amendment No. 58 Effective Date, (B) maturing more than one year after the Amendment No. 58 Initial Term Loan Maturity Date or (C) incurred to finance a Permitted Acquisition or Investment permitted by Section 10.5.
(e) Each notice from the Borrower pursuant to this Section 2.14 shall be given in writing and Administrative Agent shall set forth the requested amount and such lenders providing proposed terms of the New Loan relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. Incremental Term Loans may be made, and each of which shall be recorded in the Register Incremental Revolving Credit Commitment Increases and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Additional/Replacement Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effectedprovided, subject to the satisfaction prior written consent of the foregoing terms Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Term Loan, no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Credit Commitment Increase and conditionsno existing Lender with a Revolving Credit Commitment will have an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other bank, financial institution, or other institutional lender or other investor (aany such other bank, or financial institution or other investor being called an “Additional Lender”); provided that (i) the Administrative 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 Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided further that, solely with respect to New any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Swingline Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayedwithheld) to such New Revolving Loan Additional Lender’s providing such New Incremental Revolving Credit Commitment to the extent Increases or Additional/Replacement Revolving Credit Commitments if such consent, if any, consent would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender or Additional Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms Commitments in respect of Incremental Term Loans, Incremental Revolving Credit Commitment Increases and provisions of any New Additional/Replacement Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that become Commitments (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of an Incremental Loans secured on Revolving Credit Commitment Increase to be provided by an existing Lender with a junior lien basisRevolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, as appropriate, the Second Lien Intercreditor Agreement.
(g) Each Joinder other Credit Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provision provisions of this Section. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”), and the occurrence of any Credit Events pursuant to such Incremental Agreement, shall be subject to the satisfaction of the applicable requirements of this Section 2.14and such other conditions, includingif any, without limitationas the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans, any amendments with respect to alternative currency in connection with the establishment of any New Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments denominated in a currency other than Dollars, for any amendments purpose not prohibited by this Agreement; provided that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to proceeds of any Incremental Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood thatincurred, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protectionAdditional/Replacement Revolving Credit Commitments provided, covenant or other provision may in either case as described in the proviso to Section 2.14(b), shall be made more favorable to used in accordance with the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect terms thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) No Lender shall be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and obligated to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments unless it so agrees in its sole discretion and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing any Incremental Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be establishedLoans, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all Incremental Revolving Credit Commitment Increases or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were convertedAdditional/Replacement Revolving Credit Commitments.
(ii) The Borrower may at any time and from time to time request that all or a portion of Upon each increase in the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitmentspursuant to this Section, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Lender with a Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvinimmedi
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, by written notice to the Administrative Agent, elect to request (x) the establishment of one or more new term loan commitments (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), ) and/or (y) additional tranches of revolving loans or increases in prior to the Revolving Credit Maturity Date, an increase to the existing Revolving Credit Commitments of (any Class (such increase, the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by in each case to effect the incurrence of Indebtedness permitted to be incurred pursuant to Sections 12.1(h)(ii) and 12.1(q) in an aggregate amount not in excess of (and not in duplication of) the Maximum Incremental Facilities Amount amount of Indebtedness permitted to be incurred pursuant to Sections 12.1(h)(ii) and/or 12.1(q), as applicable, in the aggregate and not less than $5,000,000 50,000,000 individually (or such lesser amount as (x) may which shall be approved by the Administrative Agent or (y) such lesser amount that shall constitute the difference between the Maximum Incremental Facilities Amount amount of Indebtedness permitted to be incurred pursuant to Sections 12.1(h)(ii) and/or 12.1(q), as applicable, and all such New Loan Commitments obtained on or prior to such date), and integral multiples of $5,000,000 in excess of that amount (it being understood that any Indebtedness incurred pursuant to this Section 2.14 shall correspondingly reduce the amount of Indebtedness permitted to be incurred pursuant to such Sections, and vice versa). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent; provided that the aggregate principal amount Borrower shall first offer the Lenders, on a pro rata basis, the opportunity to provide all of the New Loan Commitments prior to offering such opportunity to any other Person that is an eligible assignee pursuant to Section 15.6(b); provided, further, that any Lender offered or approached to provide all or a portion of the New Revolving Credit Loan Commitments shall not exceed $35,000,000 during the term of this Agreementmay elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such Such New Loan Commitments shall become effective effective, as of the applicable such Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Default or Event of Default shall exist on such Increased Amount Date immediately before or after giving effect to such New Loan Commitments, as applicable applicable; (andii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Credit Loans, otherwise, no Event each of Default under the conditions set forth in Section 12.1 or Section 12.5 9 shall exist be satisfied; (iii) the Borrower and its Subsidiaries shall be continuing); provided, further, that in pro forma compliance with each of the covenants set forth in Sections 12.9 and 12.10 as of the last day of the most recently ended fiscal quarter after giving effect to such New Loan Commitments and any investment to be consummated in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and therewith; (iiiv) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and the Administrative Agent and such lenders providing the New Loan CommitmentsAgent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e5.4(d); (v) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (vi) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, shall be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving and the other Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan CommitmentsDocuments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ai) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Credit Lender”) and each of the New Revolving Loan Credit Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such ClassCommitments, at the principal amount thereofthereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the such Revolving Credit Loans of such Class will be held by existing Lenders with Revolving Credit Lenders Loans and New Revolving Loan Credit Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (iii) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, and each Loan loan made under a New Revolving Credit Commitment thereunder (a “New Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit Loans Loan and (iiiii) each New Revolving Loan Credit Lender shall become a Lender with respect to the its New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the its New Term Loan Commitment of such Series and the New Term Loans of such Series made by such Lender pursuant thereto.
(d) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the Series of New Term Loan Commitments and New Term Loan Lenders of such Series or the New Revolving Credit Commitments and New Revolving Credit Lenders, as applicable, and (ii) in the case of each notice to any Lender with Revolving Credit Loans, the respective interests in such Lender’s Revolving Credit Loans subject to the assignments contemplated by clause (b) of this Section 2.14.
(e) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, identical to the Initial Term Loans and the Delayed Draw Term Loans; provided, however, that (i) the New Term Loan Maturity Date for any Series shall be on terms as determined by the Borrower and the applicable New Term Loan Lenders and shall be set forth in the applicable Joinder Agreement; , provided that (ix) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Initial Term Loans, the Delayed Draw Term Loans and the Revolving Credit Loans and (y) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to final maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor Delayed Draw Term Loans and the Revolving Credit Loans and (ivii) if the rate of interest applicable to the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans each Series shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate applicable New Term Loans that are pari passu in right of payment Loan Lenders and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) shall be set forth in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) applicable Joinder Agreement. The terms and provisions of any the New Revolving Credit Loans and New Revolving Credit Commitments and shall be identical to the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor AgreementCommitments.
(gf) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision provisions of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin
Appears in 1 contract
Sources: Credit Agreement (Texas Genco Inc.)
Incremental Facilities. (a) The At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect request to request the establishment of add (i) (x) one or more increases to any existing Term Loan or Incremental Term Loan (xeach such increase, a “Term Loan Increase”) or (y) one or more additional tranches of term loans or increases in (“Other Term Loans of Loans” and together with any Class (the commitments theretoTerm Loan Increase, the “New Incremental Term Loan CommitmentsLoans”)) or (ii) solely during the Revolving Availability Period, and/or (y) additional tranches of revolving loans one or more increases in the aggregate amount of the Revolving Credit Commitments of any Class (the each such increase, a “New Revolving Credit CommitmentsCommitment Increase” and, together with the New Incremental Term Loan CommitmentsLoans, the “New Loan CommitmentsIncremental Facilities”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment (or, subject to clauses (A) and (B) below, to the extent the initial proceeds of any Incremental Facilities are used in connection with any acquisition of or other investment in all or substantially all of the Equity Interests, assets or business of any Person or any assets constituting a business unit, line or division of such Person, at and as of the date the agreement with respect to such acquisition or other investment is signed), (A) no Default has occurred and is continuing or shall result therefrom (provided that in the event the initial proceeds of any Incremental Facilities are used in connection with any acquisition of or other investment in all or substantially all of the Equity Interests, assets or business of any Person or any assets constituting a business unit, line or division of such Person, such condition precedent set forth in this clause (A) may be waived or limited as agreed between the Borrower and the Lenders providing such Incremental Facility, without the consent of any other Lenders), (B) the representations and warranties of the Borrower set forth in the Loan Documents (or, to the extent the initial proceeds of any Incremental Facilities are used in connection with any acquisition of or other investment in all or substantially all of the Equity Interests, assets or business of any Person or any assets constituting a business unit, line or division of such Person, at the time the agreement with respect to such acquisition or other investment is signed and upon the effectiveness of such Incremental Facility Amendment, solely the representations and warranties of the Borrower set forth in Sections 3.01(a), 3.01(b), 3.02, 3.03(b) (with respect to the charter, articles or certificate of organization or incorporation and bylaws or other organizational or governing documents of the Borrower), 3.08(d), 3.09, 3.10 and 3.14 and customary specified acquisition agreement representations and warranties with respect to the Person to be acquired) shall be true and correct in all material respects (or, in the case of representations and warranties qualified as to materiality or Material Adverse Effect, in all respects) at and as of such time, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date, (C) the Borrower shall be in compliance on a Pro Forma Basis after giving effect to the incurrence or assumption of such Indebtedness (and the application of the proceeds therefrom) with the covenants contained in Sections 6.09 (if then applicable) and 6.10 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are required to have been delivered pursuant to Section 5.01(a) or 5.01(b) (and, if such Incremental Facility is in the form of a Revolving Commitment Increase, assuming for purposes of determining compliance thereof that such Revolving Commitment Increase is fully drawn as of the last day of such fiscal quarter); provided that if such compliance is measured on the date the agreement is signed with respect to an acquisition of or other investment in all or substantially all of the Equity Interests, assets or business of any Person or any assets constituting a business unit, line or division of such Person, then in connection with the calculation of any financial ratio with respect to any covenant set forth in Article VI or in connection with the designation of an Unrestricted Subsidiary pursuant to Section 6.12 or in connection with the designation of a Qualified Acquisition, in each case on or following such date and prior to the earlier of the date on which such acquisition or investment is consummated or the agreement with respect to such acquisition or investment is terminated, such financial ratio shall be calculated on a Pro Forma Basis assuming such acquisition, investment and any other pro forma events in connection therewith (including the incurrence of Indebtedness and such Incremental Facility) have been consummated, except to the extent such calculation would result in a lower Total Net Leverage Ratio, a lower Total Senior Secured Leverage Ratio or a higher ratio of Consolidated Interest Coverage Ratio (if applicable) than would apply if such calculation was made without giving effect to such acquisition, investment, other pro forma events in connection therewith or the incurrence of Indebtedness or any Incremental Facility on a Pro Forma Basis, and (D) the Borrower shall have delivered a certificate of a Responsible Officer certifying as to compliance with clauses (A), (B) and (C) above, together with reasonably detailed calculations demonstrating compliance with clause (C) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and the Compliance Certificate required to be delivered by Section 5.01(a) or 5.01(b) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Debt Service (if applicable) for the relevant period). Notwithstanding anything to the contrary herein, the aggregate principal amount of all New Revolving Credit Commitments the Incremental Facilities shall not exceed $35,000,000 during 2,500,000,0003,500,000,000 at any one time outstanding. Each Term Loan Increase, each tranche of Other 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 $10,000,000; provided that such amount may be less than $10,000,000 if such amount represents all the term remaining availability under the aggregate principal amount of this AgreementIncremental Facilities set forth above. In each caseSolely in connection with any calculation of the Total Net Leverage Ratio for purposes of clause (C) above, such New Loan Commitments shall become effective as the cash proceeds of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and Facility will not be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitmentsdeducted from Total Indebtedness.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to Any Incremental Term Loans structured as a separate tranche of term loans from the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Term Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall rank pari passu or junior in right of payment with the Obligations, (ii) for purposes of prepayments, shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment treated substantially the same as (a “New Revolving Credit Loan”and in any event no more favorably than) shall be deemed, for all purposes, Revolving Credit the applicable Class of Term Loans and (iiiii) each New Revolving Loan Lender shall become a Lender with respect other than amortization, pricing, maturity date and any other terms acceptable to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer Agent, shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on same terms as determined by the Borrower and set forth in the Joinder Agreementapplicable Class of Term Loans; provided that (iA) the applicable New any Incremental Term Loan Maturity Date of each Series shall be no not have a final maturity date earlier than the Initial Maturity Date for the applicable Class of Term Loans and (B) any Incremental Term Loan Maturity Date, (ii) the shall not have a weighted average life to maturity of all New Term Loans shall be no that is shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial then-remaining Term LoansLoans of the applicable Class. Notwithstanding anything herein to the contrary, (iii) no Subsidiary the terms and provisions of Holdings any Term Loan Increase (other than arrangement, upfront, amendment and other similar fees and original issue discount) shall be identical to those of the applicable Class of Term Loans subject to such increase.
(c) Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Any additional bank, financial institution, existing Lender or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, Person that any New Term Loans that are secured by a Lien on the Collateral that is junior elects to extend Incremental Facilities shall be reasonably satisfactory to the Lien securing Borrower and the Obligations, or that is unsecured, shall be established as a separate facility and be subjectAdministrative Agent (and, in the case of any Revolving Commitment Increase, each Issuing Bank) (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Loans secured Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Collateral on a junior lien basisBorrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to provide any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided thatFacility, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans unless it so agrees. Commitments in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans any Incremental Facilities shall become Commitments (or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such New Term Loans denominated in U.S. Dollars, 0.50%, and (iiRevolving Lender’s Revolving Commitment) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder under this Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable . An Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement Facility Amendment may, without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the or any other Credit Documents Loan Document as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision provisions of this Section 2.14, including, without limitation, any amendments with respect 2.20 (including to alternative currency in connection with provide for voting provisions applicable to the establishment Additional Lenders comparable to the provisions of clause (B) of the second proviso of Section 9.02(b)). The effectiveness of any New Revolving Credit Commitments denominated in a currency other than DollarsIncremental Facility Amendment shall, any amendments that unless otherwise agreed to by the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase Administrative Agent and the Additional Lenders, be subject to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors satisfaction on the existing Class effective date thereof (each, an “Incremental Facility Closing Date”) of Term Loans may be automatically increased, each of the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; conditions set forth in Section 4.02 (it being understood and agreed by that all references to “the parties hereto that the Administrative Agent will not date of such Borrowing” in Section 4.02 shall be making, and shall not be responsible for, any determinations as deemed to refer to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereofIncremental Facility Closing Date).
(d) On the date of effectiveness of any Revolving Commitment Increase, (i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any aggregate principal amount of such Term the Revolving Loans outstanding (any such Term Loans which have been so converted, the “Extended Term LoansExisting Revolving Borrowings”) immediately prior to the effectiveness of such Revolving Commitment Increase shall be deemed to be repaid, (ii) each Revolving Commitment Increase Lender that shall have had a Revolving Commitment prior to the effectiveness of such Revolving Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the amount, if any, by which (A) (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) exceeds (B) (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each Revolving Commitment Increase Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Revolving Commitment Increase shall pay to Administrative Agent in same day funds an amount equal to (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to provide for other terms consistent with this Section 2.14(h). In order each Revolving Lender the portion of such funds that is equal to establish any Extended Term Loansthe amount, if any, by which (A) (1) such Revolving Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, exceeds (B) (1) such Revolving Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (v) after the effectiveness of such Revolving Commitment Increase, the Borrower shall provide be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a notice Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (who and the Borrower shall provide a copy deliver such Borrowing Request), (vi) each Revolving Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such notice Revolving Commitment Increase) and (vii) the Borrower shall pay each Revolving Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.15 if the date of the effectiveness of such Revolving Commitment Increase occurs other than on the last day of the Interest Period relating thereto. Upon each Revolving Commitment Increase pursuant to this Section 2.20, each Revolving Lender immediately prior to such increase will automatically and without further action be deemed to have assigned to each 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 Letters of Credit such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of participations, the percentage of the Lenders aggregate outstanding participations hereunder in Letters of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were convertedCredit, in each case as more particularly set forth in paragraph held by each Revolving Lender (ivincluding each such Revolving Commitment Increase Lender) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of will equal such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were convertedRevolving Lender’s Applicable Percentage.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin
Appears in 1 contract
Incremental Facilities. (a) The Borrower mayCompany may on one or more occasions, by written notice to the Administrative Agent, elect to request (i) following the First Amendment Effective Date, the establishment of one Incremental Revolving Commitments and/or (ii) following the First Amendment Effective Date, the establishment of Incremental Term Commitments, in an aggregate amount for all such Incremental Commitments not to exceed the sum of (A) $300,000,000 less the aggregate amount of Incremental Equivalent Debt incurred by the Company in reliance on this clause (A) plus (B) such amount as would not cause the Secured Leverage Ratio, computed on a Pro Forma Basis (but without netting the cash proceeds thereof) as of the last day of the fiscal quarter most recently ended prior to the effective date of the relevant Incremental Facility Agreement in respect of which financial statements have been delivered pursuant to Section 5.01(a) or more (xb), to exceed, 3.50 to 1.00 plus (C) additional tranches of term loans or increases in Term Loans the amount of any Class (the commitments thereto, the “New optional prepayment of any Term Loan Commitments”), in accordance with Section 2.04(a) and/or (y) additional tranches the amount of revolving loans or increases in any permanent reduction of any Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments” and, together in accordance with the New Term Loan Commitments, the “New Loan Commitments”Section 2.05(a), by an in each case, after the First Amendment Effective Date less the aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved Equivalent Debt incurred by the Administrative Agent or Company in reliance on this clause (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such dateC); provided that for purposes of the aggregate principal pro forma calculations required by clauses (A), (B) and (C) above, (x) the Incremental Revolving Commitments that would become effective in connection with the requested Incremental Facility shall be assumed to be fully drawn and (y) the calculation of clause (B) above shall be determined without giving effect to any incurrence under clause (A) or (C) above that is incurred substantially simultaneously with amounts under clause (B) above; provided, further, that, in the case of Incremental Term Commitments established to finance a [[64957038000343]] Limited Condition Acquisition, the condition set forth in this clause (B) may, at the Company’s option, as set forth in the applicable Incremental Facility Agreement, be tested at the signing of the definitive agreement to consummate such Limited Condition Acquisition or at the closing thereof. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of all New the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person that the Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Credit Lender, each L/C Issuer.
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, identical to those of the Revolving Credit Commitments and Revolving Credit Loans and other extensions of credit made thereunder, and shall not exceed $35,000,000 during the term of this Agreement. In each case, be treated as a single Class with such New Loan Revolving Commitments shall become effective as of the applicable Increased Amount Dateand Loans; provided that (i) with respect to New Loan the maturity date of any Incremental Revolving Commitments incurred in reliance of clause (a) shall be no sooner than, but may be later than, the Maturity Date of the definition Revolving Credit Facility, (ii) there shall be no mandatory reduction of Maximum any Incremental Facilities AmountRevolving Commitments prior to the Maturity Date for the Revolving Credit Facility and (iii) the up-front fees applicable to any Incremental Revolving Facility shall be as determined by the Company and the Incremental Revolving Credit Lenders providing such Incremental Facility. The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, no Event except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to those of Default the Term B Commitments and the Term B Loans; provided that (i) the up-front fees, interest rates and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall exist on such Increased Amount Date immediately after giving effect to such New Loan be determined by the Company and the Incremental Term Lenders providing the relevant Incremental Term Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments weighted average life to maturity of any Incremental Term Loans that are not Incremental Term A Loans shall be no shorter than, but may be longer than, the remaining weighted average life to maturity of the then outstanding Term B Loans (determined without giving effect to any prepayments that reduce amortization), (iii) no Incremental Term Maturity Date in respect of Incremental Term Loans that are not Incremental Term A Loans shall be earlier than, but may be later than, the Maturity Date for the Term B Loans, (iv) no Incremental Term Maturity Date in respect of Incremental Term A Loans shall be earlier than, but may be later than, the Maturity Date for the Revolving Credit Facility and (v) if the Weighted Average Yield applicable to any Incremental Term Loans exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as amended through the date of such calculation, with respect to the Term B Loans, then the Applicable Rate then in effect for the Term B Loans shall automatically be increased to eliminate such excess; provided, however, that any interest in the Applicable Rate required pursuant to the foregoing as a result of any [[64957038000343]] interest rate “floor” shall be effected solely through the establishment of or increase to an interest rate “floor”. Notwithstanding the foregoing, the terms and conditions applicable to an Incremental Facility may include additional or different financial or other covenants or other provisions that are agreed between the Company and the Lenders providing such Incremental Facility which are applicable only during periods after the Latest Maturity Date that is in effect on the date of effectiveness of such Incremental Facility. Any Incremental Term Facilities established pursuant to one or more Joinder Agreements executed and delivered by an Incremental Facility Agreement (other than any Incremental Term Facilities having terms identical to the Borrower and Administrative Agent and such lenders providing Term B Loans made on the New Loan CommitmentsFirst Amendment2025 Refinancing Facility Effective Date) that have identical terms, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New any Incremental Term Loans made on an Increased Amount Date shallthereunder, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, shall be designated as (a) a separate series (each a “Series”) of New Incremental Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Commitments and Incremental Term Loans for all purposes of this Agreement. Any New Notwithstanding anything to the contrary herein, each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the other Loan Document Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Commitments and Incremental Facilities and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date; provided that, in the case of Incremental Term Commitments established to finance a Limited Condition Acquisition, except with respect to the requirement that there not have occurred and be continuing any Default under paragraph (a) or (b) of Article VII or any Default with respect to any Borrower under paragraph (i) or (j) of Article VII (which must be true both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans thereunder to be made on the date of effectiveness thereof), any condition set forth in this clause (i) may, at the Company’s option, as set forth in the applicable Incremental Facility Agreement, be tested at the signing of the agreement to make such Limited Condition Acquisition or on the date of effectiveness of such Incremental Term Commitments, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be made and shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date; provided that, in the case of Incremental Term Commitments established to finance a Limited Condition Acquisition, the condition set forth in this clause (ii) may, at the Company’s option, be modified in a manner determined by the Company and the Incremental Lenders providing such Incremental Term Loan Commitments, as set forth in the applicable Incremental Facility Agreement, such that the only representations and warranties the accuracy of which is a condition to the effectiveness of such Incremental Term Commitments are the Specified Representations, (iii) after giving effect to such Incremental Commitments and the making of Loans pursuant thereto and the use of proceeds thereof (and based on the assumption [[64957038000343]] that borrowings are effected in the full amount of any Incremental Revolving Commitments), the Company shall be in compliance on a Pro Forma Basis with the covenant contained in Section 6.13 recomputed as of the last day of the most-recently ended fiscal quarter of the Company for which financial statements shall have been delivered pursuant to Section 5.01(a) or New Revolving Credit 5.01(b); provided that, in the case of Incremental Term Commitments may be incurred established to finance a Limited Condition Acquisition, the condition set forth in Dollars and any other currency this clause (iii) may, at the election Company’s option, as set forth in the applicable Incremental Facility Agreement, be tested at the signing of the Borrower agreement to make such Limited Condition Acquisition or on the date of effectiveness of such Incremental Term Commitments, (iv) the Company shall make any payments required to be made pursuant to Section 2.18 in connection with such Incremental Commitments and agreed the related transactions under this Section and (v) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in its sole discretionconnection with any such transaction, including a certificate of a Financial Officer to the effect set forth in clauses (i), (ii) and (iii) above, together with reasonably detailed calculations demonstrating compliance with clause (iii) above. No Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section; provided that to the extent that any term of any such amendment could not be approved as an amendment of this Agreement by the Lenders providing such Incremental Commitments voting a single Class without the approval of any other Lender, such amendment will be subject to the approval of the requisite Lenders required under this Agreement.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be required deemed to provide be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any New Loan CommitmentsIncremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Aggregate Revolving Credit Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Credit Commitment”. Upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Credit Lender holding such Commitment, and the Applicable Percentage of all the Revolving Credit Lenders, shall automatically be adjusted to give effect thereto.
(be) On the date of effectiveness of any Increased Amount Date on which New Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class Lender shall assign to each Lender with a New Incremental Revolving Credit Commitment (eachLender holding such Incremental Revolving Commitment, a “New Revolving Loan Lender”) and each of the New such Incremental Revolving Loan Lenders Credit Lender shall purchase from each of the Lenders with Revolving Credit Commitments of such ClassLender, at the principal amount thereofthereof (together with [[64957038000343]] accrued interest), such interests in the Revolving Credit Loans and participations in Letters of Credit outstanding on such Increased Amount Date date as shall be necessary in order that, after giving effect to all such assignments and purchases, the such Revolving Credit Loans and participations in Letters of such Class Credit will be held by existing all the Revolving Credit Lenders and New (including such Incremental Revolving Loan Lenders Credit Lenders) ratably in accordance with their Revolving Credit Commitments of such Class Applicable Percentages after giving effect to the addition effectiveness of such New Incremental Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan LenderCommitment.
(cf) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject Subject to the satisfaction of the foregoing terms and conditionsconditions set forth herein and in the applicable Incremental Facility Agreement, (i) each Lender with a New holding an Incremental Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) Company in an amount equal to its New such Incremental Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, date specified in the case of such Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Facility Agreement.
(g) Each Joinder Agreement may, without The Administrative Agent shall notify the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed promptly upon receipt by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, notice from the Company referred to in Section 2.21(a) and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans effectiveness of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so convertedIncremental Commitments, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to in each of case advising the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth details thereof and, in the proposed terms case of effectiveness of any Incremental Revolving Commitments, of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion Applicable Percentages of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” Lenders after giving effect thereto and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments assignments required to be established, which shall be on terms substantially similar made pursuant to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (ySection 2.21(e)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin.
Appears in 1 contract
Incremental Facilities. (a) The At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect request to request the establishment of add (i) (x) one or more increases to any existing Incremental Term Loan (xeach such increase, a “Term Loan Increase”) or (y) one or more additional tranches of term loans or increases in (“Other Term Loans of Loans” and together with any Class (the commitments theretoTerm Loan Increase, the “New Incremental Term Loan CommitmentsLoans”)) or (ii) solely during the Revolving Availability Period, and/or (y) additional tranches of revolving loans one or more increases in the aggregate amount of the Revolving Credit Commitments of any Class (the each such increase, a “New Revolving Credit CommitmentsCommitment Increase” and, together with the New Incremental Term Loan CommitmentsLoans, the “New Loan CommitmentsIncremental Facilities”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment (or, subject to clauses (A) and (B) below, to the extent the initial proceeds of any Incremental Facilities are used in connection with any acquisition of or other investment in all or substantially all of the Equity Interests, assets or business of any Person or any assets constituting a business unit, line or division of such Person, at and as of the date the agreement with respect to such acquisition or other investment is signed), (A) no Default has occurred and is continuing or shall result therefrom (provided that in the event the initial proceeds of any Incremental Facilities are used in connection with any acquisition of or other investment in all or substantially all of the Equity Interests, assets or business of any Person or any assets constituting a business unit, line or division of such Person, such condition precedent set forth in this clause (A) may be waived or limited as agreed between the Borrower and the Lenders providing such Incremental Facility, without the consent of any other Lenders), (B) the representations and warranties of the Borrower set forth in the Loan Documents (or, to the extent the initial proceeds of any Incremental Facilities are used in connection with any acquisition of or other investment in all or substantially all of the Equity Interests, assets or business of any Person or any assets constituting a business unit, line or division of such Person, at the time the agreement with respect to such acquisition or other investment is signed and upon the effectiveness of such Incremental Facility Amendment, solely the representations and warranties of the Borrower set forth in Sections 3.01(a), 3.01(b), 3.02, 3.03(b) (with respect to the charter, articles or certificate of organization or incorporation and bylaws or other organizational or governing documents of the Borrower), 3.08(d), 3.09, 3.10 and 3.14 and customary specified acquisition agreement representations and warranties with respect to the Person to be acquired) shall be true and correct in all material respects (or, in the case of representations and warranties qualified as to materiality or Material Adverse Effect, in all respects) at and as of such time, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date, (C) the Borrower shall be in compliance on a Pro Forma Basis after giving effect to the incurrence or assumption of such Indebtedness (and the application of the proceeds therefrom) with the covenants contained in Section 6.10 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are required to have been delivered pursuant to Section 5.01(a) or 5.01(b) (and, if such Incremental Facility is in the form of a Revolving Commitment Increase, assuming for purposes of determining compliance thereof that such Revolving Commitment Increase is fully drawn as of the last day of such fiscal quarter); provided that if such compliance is measured on the date the agreement is signed with respect to an acquisition of or other investment in all or substantially all of the Equity Interests, assets or business of any Person or any assets constituting a business unit, line or division of such Person, then in connection with the calculation of any financial ratio with respect to any covenant set forth in Article VI or in connection with the designation of an Unrestricted Subsidiary pursuant to Section 6.12 or in connection with the designation of a Qualified Acquisition, in each case on or following such date and prior to the earlier of the date on which such acquisition or investment is consummated or the agreement with respect to such acquisition or investment is terminated, such financial ratio shall be calculated on a Pro Forma Basis assuming such acquisition, investment and any other pro forma events in connection therewith (including the incurrence of Indebtedness and such Incremental Facility) have been consummated, except to the extent such calculation would result in a lower Total Net Leverage Ratio or a lower Total Senior Secured Leverage Ratio than would apply if such calculation was made without giving effect to such acquisition, investment, other pro forma events in connection therewith or the incurrence of Indebtedness or any Incremental Facility on a Pro Forma Basis, and (D) the Borrower shall have delivered a certificate of a Responsible Officer certifying as to compliance with clauses (A), (B) and (C) above, together with reasonably detailed calculations demonstrating compliance with clause (C) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and the Compliance Certificate required to be delivered by Section 5.01(a) or 5.01(b) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA for the relevant period). Notwithstanding anything to the contrary herein, the aggregate principal amount of all New Revolving Credit Commitments the Incremental Facilities shall not exceed $35,000,000 during 500,000,000 at any one time outstanding. Each Term Loan Increase, each tranche of Other 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 $10,000,000; provided that such amount may be less than $10,000,000 if such amount represents all the term remaining availability under the aggregate principal amount of this AgreementIncremental Facilities set forth above. In each caseSolely in connection with any calculation of the Total Net Leverage Ratio for purposes of clause (C) above, such New Loan Commitments shall become effective as the cash proceeds of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and Facility will not be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitmentsdeducted from Total Indebtedness.
(b) On Any Incremental Term Loans structured as a separate tranche of term loans from any Increased Amount Date on which New Revolving Credit Commitments then-existing tranche of Term Loans (i) shall rank pari passu or junior in right of payment with the Obligations, (ii) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) any then-existing Term Loans of the applicable type (i.e., “term loan A” or “term loan B”) or, if no such Incremental Term Loans are effectedthen outstanding, shall be subject to the satisfaction prepayment terms that are customary for credit facilities of the foregoing applicable type, as determined in good faith by the Borrower and the Lender or Lenders providing such Incremental Term Loans, and (iii) other than amortization, pricing, maturity date, mandatory prepayments and any other terms and conditionsacceptable to the Administrative Agent, (a) with respect to New Revolving Credit Commitments, each shall have the same terms as any then-existing Term Loans of the Lenders applicable type or, if no such Term Loans are then outstanding, shall have terms that are substantially consistent with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments terms applicable to the Revolving Credit Commitments, and Loans (b) with respect to New Revolving Credit Commitments, or no more favorable (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in good faith) to the Joinder AgreementLender or Lenders providing such Incremental Term Loans than the terms applicable to the Revolving Loans, unless such terms either (x) are applicable only after the Revolving Maturity Date or (y) are added for the benefit of the Revolving Loans); provided that (iA) the applicable New any Incremental Term Loan Maturity Date of each Series (other than Customary Bridge Loans) shall be no not have a final maturity date earlier than the Initial Term Loan Latest Maturity Date, (iiB) the amortization schedule for any Class of such Incremental Term Loans may be determined by the Borrower and the Lender or Lenders providing such Incremental Term Loans and (C) any Incremental Term Loan (other than Customary Bridge Loans) shall not have a weighted average life to maturity of all New Term Loans shall be no that is shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial any then-existing tranche of Term Loans. Notwithstanding anything herein to the contrary, (iii) no Subsidiary the terms and provisions of Holdings any Term Loan Increase (other than arrangement, upfront, amendment and other similar fees and original issue discount) shall be identical to those of the applicable Class of Term Loans subject to such increase.
(c) Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Any additional bank, financial institution, existing Lender or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, Person that any New Term Loans that are secured by a Lien on the Collateral that is junior elects to extend Incremental Facilities shall be reasonably satisfactory to the Lien securing Borrower and the Obligations, or that is unsecured, shall be established as a separate facility and be subjectAdministrative Agent (and, in the case of any Revolving Commitment Increase, each Issuing Bank) (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Loans secured Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Collateral on a junior lien basisBorrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to provide any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided thatFacility, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans unless it so agrees. Commitments in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans any Incremental Facilities shall become Commitments (or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such New Term Loans denominated in U.S. Dollars, 0.50%, and (iiRevolving Lender’s Revolving Commitment) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder under this Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable . An Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement Facility Amendment may, without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the or any other Credit Documents Loan Document as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision provisions of this Section 2.14, including, without limitation, any amendments with respect 2.20 (including to alternative currency in connection with provide for voting provisions applicable to the establishment Additional Lenders comparable to the provisions of clause (B) of the second proviso of Section 9.02(b)). The effectiveness of any New Revolving Credit Commitments denominated in a currency other than DollarsIncremental Facility Amendment shall, any amendments that unless otherwise agreed to by the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase Administrative Agent and the Additional Lenders, be subject to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors satisfaction on the existing Class effective date thereof (each, an “Incremental Facility Closing Date”) of Term Loans may be automatically increased, each of the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; conditions set forth in Section 4.02 (it being understood and agreed by that all references to “the parties hereto that the Administrative Agent will not date of such Borrowing” in Section 4.02 shall be making, and shall not be responsible for, any determinations as deemed to refer to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereofIncremental Facility Closing Date).
(d) On the date of effectiveness of any Revolving Commitment Increase, (i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any aggregate principal amount of such Term the Revolving Loans outstanding (any such Term Loans which have been so converted, the “Extended Term LoansExisting Revolving Borrowings”) immediately prior to the effectiveness of such Revolving Commitment Increase shall be deemed to be repaid, (ii) each Revolving Commitment Increase Lender that shall have had a Revolving Commitment prior to the effectiveness of such Revolving Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the amount, if any, by which (A) (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) exceeds (B) (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each Revolving Commitment Increase Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Revolving Commitment Increase shall pay to Administrative Agent in same day funds an amount equal to (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to provide for other terms consistent with this Section 2.14(h). In order each Revolving Lender the portion of such funds that is equal to establish any Extended Term Loansthe amount, if any, by which (A) (1) such Revolving Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, exceeds (B) (1) such Revolving Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (v) after the effectiveness of such Revolving Commitment Increase, the Borrower shall provide be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a notice Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (who and the Borrower shall provide a copy deliver such Borrowing Request), (vi) each Revolving Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such notice Revolving Commitment Increase) and (vii) the Borrower shall pay each Revolving Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.15 if the date of the effectiveness of such Revolving Commitment Increase occurs other than on the last day of the Interest Period relating thereto. Upon each Revolving Commitment Increase pursuant to this Section 2.20, each Revolving Lender immediately prior to such increase will automatically and without further action be deemed to have assigned to each 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 ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of participations, the percentage of the Lenders aggregate outstanding participations hereunder in Letters of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were convertedCredit, in each case as more particularly set forth in paragraph held by each Revolving Lender (ivincluding each such Revolving Commitment Increase Lender) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of will equal such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were convertedRevolving Lender’s Applicable Percentage.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin
Appears in 1 contract
Sources: Credit Agreement (Crown Castle Inc.)
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent, elect to Agent request the establishment of (i) one or more (x) additional tranches Classes of term loans or increases in Term Loans additional term loans of the same Class of any existing Class of term loans (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or (yii) additional tranches of revolving loans one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments (the “New Additional/Replacement Revolving Credit Commitments,” and, together with the New Incremental Term Loan CommitmentsLoans and the Incremental Revolving Credit Commitment Increases, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, by an aggregate amount not in excess of subject to Section 1.11, at the Maximum time that any such Incremental Facilities Amount Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior proviso to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (ab) of the definition of Maximum Incremental Facilities Amountbelow, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments(or, as applicable (and, otherwisein the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition or similar Investment, no Event of Default under Section 12.1 11.1 or Section 12.5 11.5) shall exist have occurred and be continuing.
(b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (it being understood that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and, unless otherwise agreed by the Borrower and the Administrative Agent, in minimum increments of $1,000,000 in excess thereof), and, subject to the proviso at the end of this Section 2.14(b), following the Second Incremental Agreement Effective Date the aggregate amount of (x) the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to Section 1.11, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of such Test Period, that is no greater than either (x) 5.25:1.00 or (y) if Incurred in connection with an Acquisition or similar Investment, no greater than the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such Acquisition or similar Investment (this clause (B), the “Incremental Ratio Debt Amount” and, together with the Incremental Base Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be Incurred without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in the first part of this 2.14(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of Incurrence of such Incremental Term Loans (or substantially concurrently therewith) to either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 5.2(a)(i) or (y) permanently reduce the Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments in accordance with the procedures set forth in Section 5.2(e)(ii) (and any such Incremental Term Loans shall be deemed to have been Incurred pursuant to this proviso), and (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the minimums set forth in the first sentence of this 2.14(b) and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments, Extended Revolving Credit Commitments or other Additional/Replacement Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided (and any such Additional/Replacement Revolving Credit Commitments shall be deemed to have been Incurred pursuant to this proviso).
(i) The Incremental Term Loans (A) shall rank equal in right of payment and security with the Initial Term Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis, (B) shall not mature earlier than the Initial Term Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, AHYDO Catch-Up Payments, funding discounts, original issue discounts, currency denomination and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided that, during the period commencing on the Closing Date and ending on first anniversary of the Closing Date, in the event that the Effective Yield for any Incremental Term Loans (other than Incremental Term Loans (x) Incurred pursuant to clause (B) of Section 2.14(b), (y) established pursuant to the proviso of Section 2.14(b) or (z) Incurred in connection with an Acquisition (clauses (x), (y) and (z), collectively, the “MFN Exceptions”)), is greater than the Effective Yield for the Initial Term Loans by more than 0.50%, then the Applicable Margins for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.50% (this proviso, the “MFN Protection”); provided, further, that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Eurodollar Rate, for purposes of calculating the applicable increase (if any) in connection with a Limited Condition Transactionthe Applicable Margins for the Initial Term Loans in the immediately preceding proviso, at the time Applicable Margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving pro forma effect to any increases required pursuant to the immediately succeeding proviso) of such Increased Amount Date Incremental Term Loans less the then applicable Reference Rate; and at (E) may otherwise have terms and conditions different from those of the time a definitive agreement is entered into in Initial Term Loans; provided that (x) except with respect of such Limited Condition Transactionto matters contemplated by clauses (B), there is no Event of Default under Section 12.1 or Section 12.5(C) and (D) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility.
(ii) the New Loan Commitments The Incremental Revolving Credit Commitment Increase shall be effected pursuant treated the same as the Class of Revolving Credit Commitments being increased (including with respect to one maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and additional upfront or more Joinder Agreements executed similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase (without any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) The Additional/Replacement Revolving Credit Commitments (A) shall rank equal in right of payment and delivered security with the Revolving Credit Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis, (B) shall not mature earlier than the Revolving Credit Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, currency denomination, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and the lenders of such commitments; provided that, during the period commencing on the Closing Date and ending on first anniversary of the Closing Date, in the event that the Effective Yield for any Additional/Replacement Revolving Credit Loans (other than Additional/Replacement Revolving Credit Loans under any Additional/Replacement Revolving Credit Commitments (x) incurred pursuant to clause (B) of Section 2.14(b), (y) established pursuant to the proviso of Section 2.14(b) or (z) Incurred in connection with an Acquisition or similar Investment) is greater than the Effective Yield for the Revolving Credit Loans by more than 0.50%, then the Applicable Margins for the Revolving Credit Loans shall be increased to the extent necessary so that the Effective Yield for the Revolving Credit Loans are equal to the Effective Yield for the Additional/Replacement Revolving Credit Loans minus 0.50%; (D) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments, (E) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to the Swingline Loans and Letters of Credit with respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (F) may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and (E) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Credit Commitments may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such lenders providing Previously Absent Financial Maintenance Covenant for the New Loan benefit of each Credit Facility (provided, further, however, that, if the applicable Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Financial Maintenance Covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)).
(d) Each notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount, currency denomination and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. Incremental Term Loans may be made, and each of which shall be recorded in the Register Incremental Revolving Credit Commitment Increases and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Additional/Replacement Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effectedprovided, subject to the satisfaction prior written consent of the foregoing terms and conditionsBorrower (not to be unreasonably withheld or delayed), by any existing Lender (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each it being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation to make a New Revolving Credit Commitment (eachportion of any Incremental Term Loan, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders no existing Lender with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under will have any obligation to provide a New portion of any Incremental Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans Increase and (ii) each New Revolving Loan Lender shall become a no existing Lender with respect to the New a Revolving Credit Commitment and all matters relating theretowill have an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, the Swingline Lender and each the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s or Additional Lender’s providing such New Incremental Revolving Credit Commitment to the extent Increases or Additional/Replacement Revolving Credit Commitments if such consent, if any, consent would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender or Additional Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Commitments in respect of Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable an Incremental Revolving Credit Maturity Date of each Series shall Commitment Increase to be no earlier than the provided by an existing Lender with a Revolving Credit Maturity DateCommitment, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New increase in such Lender’s applicable Revolving Credit Commitments are securedCommitment) under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, are not secured as appropriate, the other Credit Documents, executed by a Lien on any assets of Holdings or its Subsidiaries other than Holdings, the Collateral; providedBorrower, that any New Revolving Credit Loans that are secured by a Lien on each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Administrative Agent. The Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended RevolvinAdminist
Appears in 1 contract
Incremental Facilities. (a1) The Parent Borrower maymay at any time, by written notice or from time to Administrative Agenttime, elect to request the establishment of (x) one or more additional classes of term “A” loans or additional term loans of the same class of any existing Term A Loans (“Incremental Term A Loans”) or (y), one or more additional classes of term “B” loans or additional term loans of the same class of any existing Term B Loans ( “Incremental Term B Loans” and together with the Incremental Term A Loans, “Incremental Term Loans”) and (2) the Borrowers may at any time, or from time to time, request (x) additional tranches of term loans one or more increases in Term Loans the amount of the Revolving Loan Commitments of any Class class (the commitments theretoeach such increase, the an “New Term Incremental Revolving Loan CommitmentsCommitment Increase”), and/or ) or (y) one or more additional tranches classes of revolving loans or increases in credit commitments ( “Additional/Replacement Revolving Credit Commitments of any Class (the “New Revolving Credit Loan Commitments,” and, together with the New all Incremental Term Loans and Incremental Revolving Loan CommitmentsCommitment Increases, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that
(i) subject to Section 11.2(g), at the time that any such Incremental Term Loan, Incremental Revolving Loan Commitment Increase or Additional/Replacement Revolving Loan Commitment is made or effected (and upon giving Pro Forma Effect thereto), (x) no Event of Default under subsection 7.1(a), 7.1(f) or 7.1(g) shall have occurred and be continuing and (y) the representations and warranties made by any Credit Party contained herein or in any other Loan Document shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except (1) to the extent that such representations and warranties expressly relate to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (2) that for purposes of this Section 1.12(a), the representations and warranties contained in Section 3.11(a) shall be deemed to refer to the most recent statements furnished pursuant to Sections 4.1(a) and (b), respectively.
(ii) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Loan Commitments and each Incremental Revolving Loan Commitment Increase shall be in an aggregate principal amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and that is not less than $5,000,000 individually (provided however that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof or all remaining availability), and the aggregate amount of the Incremental Term Loans, Incremental Revolving Loan Commitment Increases and the Additional/Replacement Revolving Loan Commitments (upon giving Pro Forma Effect thereto and to the use of the proceeds thereof) incurred pursuant to this Section 1.12(a) shall not exceed, as of the date of incurrence of such lesser Indebtedness or commitments, the sum of (A) the Incremental Starter Amount, plus (B) an aggregate amount as of Indebtedness, such that, subject to Section 11.2(g), upon giving Pro Forma Effect to such incurrence (and any Specified Transaction to be consummated in connection therewith), the Parent Borrower would be in compliance with (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on case of an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement Incremental Facility or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit CommitmentsIncremental Equivalent Debt, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral pari passu with the Liens securing the Credit Facilities, a First Lien Leverage Ratio as of the last day of the Test Period most recently ended on or prior to the incurrence of any such Incremental Facility or Incremental Equivalent Debt, calculated on a Pro Forma Basis, as if such incurrence (and transactions) had occurred on the first day of such Test Period, that is junior to the Lien securing the Obligations, no greater than (i) 3.90:1.00 or that is unsecured, shall be established as a separate facility and be subject, in the case of (ii) if such Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Facility or Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term LoansEquivalent Debt, as applicable, by more than is incurred in connection with an Acquisition or other permitted Investment, the greater of (iI) 3.90:1.00 and (II) the First Lien Leverage Ratio immediately prior to the incurrence of such Incremental Facility or Incremental Equivalent Debt, as applicable, and the consummation of such Acquisition or other permitted Investment, (y) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans an Incremental Facility or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term LoansIncremental Equivalent Debt, as applicable, that is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is ranking junior to the Lien Liens securing the ObligationsCredit Facilities, a Senior Secured Leverage Ratio that is no greater than (i) 4.15:1.00 or (ii) if such Incremental Facility or Incremental Equivalent Debt, as applicable, is incurred in connection with an Acquisition or other permitted Investment, the greater of (I) 4.15:1.00 and (II) the Senior Secured Leverage Ratio immediately prior to incurrence of such Incremental Facility or Incremental Equivalent Debt, as applicable, and the consummation of such Acquisition or other permitted Investment or (z) in the case of an Incremental Facility or Incremental Equivalent Debt, as applicable, that is unsecured, shall be established a Total Leverage Ratio that is no greater than (i) 4.40:1.00 or (ii) if such Incremental Facility or Incremental Equivalent Debt, as a separate facility and be subjectapplicable, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency is incurred in connection with the establishment of any New Revolving Credit Commitments denominated in a currency an Acquisition or other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposespermitted Investment, the interest rate margins greater of (I) 4.40:1.00 and rate floors on (II) the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable Total Leverage Ratio immediately prior to the applicable existing Lenders without the consent incurrence of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be makingIncremental Facility or Incremental Equivalent Debt, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposesapplicable, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount consummation of such Term Loans Acquisition or other permitted Investment (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide recomputed for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that foregoing clauses (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class ), (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) belowy) and (yz) as of the last day of the most recently ended period of four consecutive Fiscal Quarters of the Parent Borrower for which financial statements have been delivered) (the sum of clauses (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or and (B) additional feesabove, premiums or applicable high-yield discount obligation (the “AHYDOIncremental Cap”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case; it is understood that, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans Indebtedness incurred pursuant to any Extension Request. Any Extended Term Loans clause (A) of any Extension Series this paragraph could subsequently be incurred pursuant to clause (B) of this paragraph, the Parent Borrower shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and be permitted to reclassify such Indebtedness from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or incurred under clause (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (Athis paragraph), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin.
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Incremental Facilities. (a) The Borrower may, by written notice to Administrative Agent, elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower Borrowers may at any time and from time to time request that all or a portion of following the Closing Date, upon prior written notice by the Borrower Representative to the Administrative Agent, increase the Aggregate Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving but not the Letter of Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Sublimit or the Swing Line Sublimit (except as otherwise set forth in the definition therein)) and/or establish one or more Incremental Term Loans, “Extended Revolving Credit Loans”by a maximum aggregate amount not to exceed the Incremental Amount, as follows (in each case, subject to Section 1.02(d)): (a) The Borrowers may at any time and from time to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitmentstime, upon prior written notice by the Borrower shall provide a notice Representative to the Administrative Agent, increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swing Line Sublimit (except as otherwise set forth in the definition therein)) with additional Revolving Commitments from any existing Revolving Lender or new Revolving Commitments from any other Person selected by the Borrower Representative and reasonably acceptable to the Administrative Agent (who shall provide a copy of such notice consent not to each of be unreasonably withheld, conditioned or delayed), the Lenders of L/C Issuer and the applicable Class of Existing Revolving Credit Commitments which Swing Line Lender; provided that: (i) any such request increase shall be offered equally to all in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof; (ii) no Event of Default shall exist and be continuing at the time of any such Lendersincrease; (iii) setting forth the proposed terms of the Extended no existing Revolving Credit Commitments to be established, which Lender shall be on terms substantially similar under any obligation to the Existing increase its Revolving Credit Class (other than for terms related Commitment and any such decision whether to interest and fees applicable only to periods after the increase its Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date Commitment shall be extended in such Revolving Lender’s sole and absolute discretion; (yiv)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin
Appears in 1 contract
Sources: Credit Agreement (SharkNinja, Inc.)
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent, elect to Agent request the establishment of (i) one or more (x) additional tranches Classes of term loans or increases in Term Loans additional term loans of the same Class of any existing Class of term loans (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or (yii) additional tranches of revolving loans one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments (the “New Additional/Replacement Revolving Credit Commitments,” and, together with the New Incremental Term Loan CommitmentsLoans and the Incremental Revolving Credit Commitment Increases, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, by an aggregate amount not in excess of subject to Section 1.11, at the Maximum time that any such Incremental Facilities Amount Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior proviso to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (ab) of the definition of Maximum Incremental Facilities Amountbelow, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments(or, as applicable (and, otherwisein the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition or similar Investment, no Event of Default under Section 12.1 11.1 or Section 12.5 11.5) shall exist have occurred and be continuing.
(b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (it being understood that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and, subject to the proviso at the end of this Section 2.14(b), the aggregate amount of(x) the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to Section 1.11, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of such Test Period, that is no greater than either (x) 5.25:1.00 or (y) if Incurred in connection with an Acquisition or similar Investment, no greater than the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such Acquisition or similar Investment (this clause (B), the “Incremental Ratio Debt Amount” and, together with the Incremental Base Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be Incurred without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in the first part of this 2.14(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of Incurrence of such Incremental Term Loans (or substantially concurrently therewith) to either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 5.2(a)(i) or (y) permanently reduce the Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments in accordance with the procedures set forth in Section 5.2(e)(ii) (and any such Incremental Term Loans shall be deemed to have been Incurred pursuant to this proviso), and (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the minimums set forth in the first sentence of this 2.14(b) and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments, Extended Revolving Credit Commitments or other Additional/Replacement Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided (and any such Additional/Replacement Revolving Credit Commitments shall be deemed to have been Incurred pursuant to this proviso).
(i) The Incremental Term Loans (A) shall rank equal in right of payment and security with the Initial Term Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis, (B) shall not mature earlier than the Initial Term Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, AHYDO Catch-Up Payments, funding discounts, original issue discounts, currency denomination and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided that, during the period commencing on the Closing Date and ending on first anniversary of the Closing Date, in the event that the Effective Yield for any Incremental Term Loans (other than Incremental Term Loans (x) Incurred pursuant to clause (B) of Section 2.14(b), (y) established pursuant to the proviso of Section 2.14(b) or (z) Incurred in connection with an Acquisition (clauses (x), (y) and (z), collectively, the “MFN Exceptions”)), is greater than the Effective Yield for the Initial Term Loans by more than 0.50%, then the Applicable Margins for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.50% (this proviso, the “MFN Protection”); provided, further, that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Eurodollar Rate, for purposes of calculating the applicable increase (if any) in connection with a Limited Condition Transactionthe Applicable Margins for the Initial Term Loans in the immediately preceding proviso, at the time Applicable Margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving pro forma effect to any increases required pursuant to the immediately succeeding proviso) of such Increased Amount Date Incremental Term Loans less the then applicable Reference Rate; and at (E) may otherwise have terms and conditions different from those of the time a definitive agreement is entered into in Initial Term Loans; provided that (x) except with respect of such Limited Condition Transactionto matters contemplated by clauses (B), there is no Event of Default under Section 12.1 or Section 12.5(C) and (D) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility.
(ii) the New Loan Commitments The Incremental Revolving Credit Commitment Increase shall be effected pursuant treated the same as the Class of Revolving Credit Commitments being increased (including with respect to one maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and additional upfront or more Joinder Agreements executed similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase (without any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) The Additional/Replacement Revolving Credit Commitments (A) shall rank equal in right of payment and delivered security with the Revolving Credit Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis, (B) shall not mature earlier than the Revolving Credit Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, currency denomination, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and the lenders of such commitments; provided that, during the period commencing on the Closing Date and ending on first anniversary of the Closing Date, in the event that the Effective Yield for any Additional/Replacement Revolving Credit Loans (other than Additional/Replacement Revolving Credit Loans under any Additional/Replacement Revolving Credit Commitments (x) incurred pursuant to clause (B) of Section 2.14(b), (y) established pursuant to the proviso of Section 2.14(b) or (z) Incurred in connection with an Acquisition or similar Investment) is greater than the Effective Yield for the Revolving Credit Loans by more than 0.50%, then the Applicable Margins for the Revolving Credit Loans shall be increased to the extent necessary so that the Effective Yield for the Revolving Credit Loans are equal to the Effective Yield for the Additional/Replacement Revolving Credit Loans minus 0.50%; (D) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments, (E) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to the Swingline Loans and Letters of Credit with respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (F) may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and (E) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Credit Commitments may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such lenders providing Previously Absent Financial Maintenance Covenant for the New Loan benefit of each Credit Facility (provided, further, however, that, if the applicable Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Financial Maintenance Covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)).
(d) Each notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount, currency denomination and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. Incremental Term Loans may be made, and each of which shall be recorded in the Register Incremental Revolving Credit Commitment Increases and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Additional/Replacement Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effectedprovided, subject to the satisfaction prior written consent of the foregoing terms and conditionsBorrower (not to be unreasonably withheld or delayed), by any existing Lender (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each it being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation to make a New Revolving Credit Commitment (eachportion of any Incremental Term Loan, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders no existing Lender with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under will have any obligation to provide a New portion of any Incremental Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans Increase and (ii) each New Revolving Loan Lender shall become a no existing Lender with respect to the New a Revolving Credit Commitment and all matters relating theretowill have an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, the Swingline Lender and each the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s or Additional Lender’s providing such New Incremental Revolving Credit Commitment to the extent Increases or Additional/Replacement Revolving Credit Commitments if such consent, if any, consent would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender or Additional Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Commitments in respect of Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable an Incremental Revolving Credit Maturity Date of each Series shall Commitment Increase to be no earlier than the provided by an existing Lender with a Revolving Credit Maturity DateCommitment, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New increase in such Lender’s applicable Revolving Credit Commitments are securedCommitment) under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, are not secured as appropriate, the other Credit Documents, executed by a Lien on any assets of Holdings or its Subsidiaries other than Holdings, the Collateral; providedBorrower, that any New Revolving Credit Loans that are secured by a Lien on each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Administrative Agent. The Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provision provisions of this Section 2.14, including, without limitation, any amendments with respect to alternative currency (including (i) in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended RevolvinIncremental Revolving
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Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent, elect to request the establishment of (i) one or more (x) additional tranches Classes of term loans or increases in Term Loans additional term loans of the same Class as any existing Class of term loans (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or or (yii) additional tranches of revolving loans one or more increases in the amount of the Revolving Credit Commitments of any Class (the each such increase, an “New Incremental Revolving Credit CommitmentsCommitment Increase” and, together with the New Incremental Term Loan CommitmentsLoans, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”), by .
(b) Each tranche of Incremental Term Loans and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and that is not less than $5,000,000 individually (or provided that such lesser amount as (x) may be approved by less than $5,000,000 if such amount represents all remaining availability under the Administrative Agent or limit set forth below) (yand in minimum increments of $1,000,000 in excess thereof), and the aggregate amount of (X) shall constitute the difference between Incremental Term Loans and Incremental Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior use of the proceeds thereof) Incurred pursuant to such datethis Section 2.14(b); provided that , plus (Y) the aggregate principal amount of all New Revolving Credit Commitments Permitted Additional Debt Incurred under Section 10.1(w) shall not exceed $35,000,000 during the term of this Agreement. In each caseexceed, such New Loan Commitments shall become effective as of the applicable Increased date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, after giving Pro Forma Effect to such Incurrence (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that (i) all Incremental Revolving Credit Commitment Increases then outstanding were fully drawn and (ii) all Incremental Commitments and all NY\6379601.11 Permitted Additional Debt incurred under Section 10.1(w) constitute Consolidated Secured Debt (whether or not such Indebtedness is in fact secured)), the Borrower would not have a Consolidated Secured Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a Pro Forma Basis, as if such Incurrence (and transactions) had occurred on the first day of such Test Period, greater than 3.25:1.00 (the “Incremental Limit”).
(c) (A) The Incremental Term Loans (i) shall rank equal in right of payment and, if secured, equal or junior in right of security with the Initial Term Loans (and shall be secured only by all or a portion of the Collateral securing the Obligations), (ii) shall not mature earlier than the Initial Term Loan Maturity Date, (iii) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (iv) shall have the same optional and mandatory prepayment terms as the Initial Term Loans, (v) shall have a maturity date (subject to clause (ii)), an amortization schedule (subject to clause (iii)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided that, in the event that the Effective Yield for any Incremental Term Loans is greater than the Effective Yield for the Initial Term Loans by more than 0.50%, then the Applicable Margins for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for the Incremental Term Loans minus 0.50%; and (vi) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that (ix) except with respect to New Loan Commitments incurred in reliance of clause matters contemplated by clauses (a) of the definition of Maximum Incremental Facilities Amountii), no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments(iii), as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5iv) and (iiv) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to periods after the Latest Maturity Date), (y) the New Loan Commitments terms and conditions applicable to the Incremental Term Loans shall not, taken as a whole and as reasonably determined by the Borrower, be more favorable to the Lenders and/or Additional Lenders providing such Incremental Term Loans than the terms and conditions applicable to the Initial Term Loans and (z) the documentation governing any Incremental Term Loans may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility.
(d) The Incremental Revolving Credit Commitment Increase shall be effected pursuant treated the same as the Revolving Credit Commitments (including with respect to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register maturity date thereof) and shall be subject considered to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election be part of the Borrower Revolving Credit Facility (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate margins, rate floors and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New undrawn commitment fees on the Revolving Credit Commitments may be incurred increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Credit Commitment Increase (without any requirement to pay such fees to any existing Revolving Credit Lenders)). NY\6379601.11
(a) Each notice from the Borrower pursuant to this Section 2.14 shall be given in Dollars writing and any other currency at shall set forth the election requested amount and proposed terms of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases and shall contain a confirmation that the lenders providing such Incremental Term Loans or Incremental Revolving Commitments are effectedexisting Lenders or would otherwise constitute Eligible Assignees. Incremental Term Loans may be made, and Incremental Revolving Credit Commitment Increases may be provided, subject to the satisfaction prior written consent of the foregoing terms and conditionsBorrower (not to be unreasonably withheld), by any existing Lender (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each it being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation to make a New Revolving Credit Commitment (each, a “New Revolving portion of any Incremental Term Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders no existing Lender with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under will have any obligation to provide a New portion of any Incremental Revolving Credit Commitment Increase) or by any other bank, financial institution, other institutional lender or other investor that would constitute an Eligible Assignee (a any such other bank, financial institution or other investor being called an “New Revolving Credit LoanAdditional Lender”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto); provided that the Administrative 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 Incremental Revolving Credit Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided further that, solely with respect to any Incremental Revolving Credit Commitment Increases, the Swingline Lender and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayedwithheld) to such New Revolving Loan Additional Lender’s providing such New Incremental Revolving Credit Commitment to the extent Increases if such consent, if any, consent would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender or Additional Lender.
(cb) On any Increased Amount Date on which any New Term Loan Commitments in respect of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Incremental Revolving Credit Commitment Increases shall become Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable an Incremental Revolving Credit Maturity Date of each Series shall Commitment Increase to be no earlier than the provided by an existing Lender with a Revolving Credit Maturity DateCommitment, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New increase in such Lender’s applicable Revolving Credit Commitments are securedCommitment) under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, are not secured as appropriate, the other Credit Documents, executed by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; providedBorrower, that any New Revolving Credit Loans that are secured by a Lien on each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Administrative Agent. The Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provision provisions of this Section 2.14(including, in connection with an Incremental Revolving Credit Commitment Increase, to reallocate Revolving Credit Exposure on a pro rata basis among the relevant Revolving Credit Lenders). The Borrower may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement. The effectiveness of any Incremental Agreement (an “Incremental Facility Closing Date”) and the occurrence of any Credit Event pursuant to such Incremental Agreement shall be subject to the satisfaction of the following conditions: NY\6379601.11
(i) no Default or Event of Default shall exist on the Incremental Facility Closing Date before or after giving effect to the making of such Incremental Term Loans or the effectiveness of such Incremental Revolving Credit Commitment Increase; provided that, with respect to any Incremental Term Loans the purpose of which is to finance a Permitted Acquisition, compliance with this clause (i) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Acquisition if the Lenders and/or Additional Lenders providing such Incremental Term Loans so agree;
(ii) each of the representations and warranties made by any Credit Party contained herein and in the other Credit Documents shall be true and correct in all material respects (without duplication of any materiality qualifiers set forth therein) with the same effect as though such representations and warranties has been made on and as of the Incremental Facility Closing Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (without duplication of any materiality qualifiers set forth therein) as of such earlier date); provided that, with respect to any Incremental Term Loans the purpose of which is to finance a Permitted Acquisition, compliance with this clause (ii) may be waived by the Lenders and/or Additional Lenders providing such Incremental Term Loans, provided that the accuracy of the Specified Representations may not be waived without the consent of the Required Lenders;
(iii) the Borrower shall be in compliance, on a Pro Forma Basis, with the Financial Performance Covenants (for the avoidance of doubt, without regard to whether Commitments under the Revolving Credit Facility have been terminated and/or Obligations thereunder are outstanding) as of the last day of the most recently ended fiscal quarter for which financial statements are required to have been delivered pursuant to Section 9.1(a) or 9.1(b) (after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases then outstanding were fully drawn); and
(iv) the Borrower shall deliver or cause to be delivered to the Administrative Agent any customary legal opinion, modifications of Mortgages, officer’s certificates or other documents (including, without limitation, a resolution duly adopted by the Board of Directors of each applicable Credit Party authorizing the Incremental Term Loans or Incremental Revolving Credit Commitment Increase, as applicable) reasonably requested by the Administrative Agent.
(c) No Lender shall be obligated to provide any amendments with respect Incremental Term Loans or Incremental Revolving Credit Commitment Increases unless it so agrees and the Borrower shall not be obligated to alternative currency offer any existing Lender the opportunity to provide any Incremental Term Loans or Incremental Revolving Credit Commitment Increases.
(d) Upon each increase in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollarspursuant to this Section, any amendments that the Borrower determine are necessary in connection each Lender with a New Term Loan Revolving Credit Commitment that is an increase of such Class immediately prior to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended will automatically and without further act be deemed to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable have assigned to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or each Lender providing a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Incremental Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request Commitment Increase (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended RevolvinNY\6379601.11
Appears in 1 contract
Sources: Credit Agreement (Amsurg Corp)
Incremental Facilities. (a) The Borrower may, by written notice to Administrative Agent, elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments, subject, if applicable, to the proviso to Section 2.14(b); provided that any Lender offered or approached to provide all or a portion of the aggregate principal amount of all New Revolving Credit Loan Commitments shall not exceed $35,000,000 during the term of this Agreementmay elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to no Event of Default (or, where waived by the Lenders providing the New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amountconnection with an acquisition or investment subject to customary “funds certain” conditions, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date immediately before or after giving effect to such New Loan Commitments, as applicable (andapplicable, otherwiseand subject to Section 1.12, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan CommitmentsAgent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New On and after the Increased Amount Date, Additional Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender Loans shall be required to provide any New Loan Commitmentsdesignated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement.
(b) On any Increased Amount Date on which New Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Incremental Revolving Credit Commitments, (i) each New Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent Agent, the Swingline Lender and each the Letter of Credit Issuer Issuers shall have consented (not to be unreasonably withheld or delayed) to such New Lender’s or Incremental Revolving Loan Lender’s providing such New Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Lender or Incremental Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and documentation set forth in the Joinder AgreementAgreement as determined by the Borrower; provided that (i) in the case of all New Term Loans in the form of a term loan B or similar form of institutional term loan (excluding, for the avoidance of doubt, an amortizing Series of New Term Loans in the form of a “term loan A” or similar form), the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, ; (ii) in the case of all New Term Loans in the form of a term loan B or similar form of institutional term loan, the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the then existing Initial Term Loans, ; (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that, that with respect to any floating rate New Term Loans Loan in the form of a term loan B or similar form of institutional term loan that are pari passu in right of payment and secured by the Collateral on a pari passu basis with matures earlier than two years after the Initial Term LoansLoan Maturity Date, only during the period commencing on the Closing Date and ending on the date that is 18 months after the Closing Date, if the Effective Yield for Term SOFR LIBOR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans by more than 0.50%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR LIBOR Loans or ABR Loans in respect of the New Term Loans minus 0.50% (this clause (iii), the “MFN Protection”); and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause (i), (ii) in or (iii) above), they shall be reasonably satisfactory to the case Administrative Agent (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such New Indebtedness (other than an amortizing Incremental Loans in the from of a “term loan A” or similar form where such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility), no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Term Loans denominated in U.S. Dollars, 0.50%, and remaining outstanding after the issuance or incurrence of such Indebtedness or (ii2) in no consent shall be required by the case Administrative Agent or any of the Lenders if any such New covenants or other provisions are only applicable after the Latest Term Loans denominated in a currency other than U.S. Dollars, 0.75%Loan Maturity Date).
(fe) The terms Incremental Revolving Credit Commitments and provisions of any New Incremental Revolving Credit Loans shall be identical to the Initial Revolving Credit Commitments and the related New Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise:
(i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank equal in right of payment and of security with the Revolving Credit Loans and the Term Loans,
(ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments,
(iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date,
(iv) subject to the provisions of Sections 2.1(e) and Sections 3.12 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series),
(v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class,
(vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date,
(vii) any Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date,
(viii) the pricing, fees, maturity and other immaterial terms as of the Additional Revolving Credit Loans may be different and shall be determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) Lenders thereunder so long as the final maturity date and the weighted average maturity of any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Additional Revolving Credit Maturity Date Loans and the applicable Incremental Additional Revolving Credit Maturity Date Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the weighted average life, as applicable, of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Initial Revolving Credit Commitments are securedand related Revolving Credit Loans, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than and
(ix) to the Collateral; provided, extent that any New Revolving Credit Loans that are secured by a Lien on financial maintenance covenant is added for the Collateral that is junior to the Lien securing the Obligationsbenefit of any such Indebtedness, or that is unsecured, no consent shall be established as a separate facility and be subject, in required by the case Administrative Agent or any of Incremental the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans secured on a junior lien basis, to remaining outstanding after the Second Lien Intercreditor Agreementissuance or incurrence of such Indebtedness.
(gf) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be on materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms substantially similar to of the Term Loans of the Existing Term Loan Class unless (other than for x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms related to interest and fees applicable only to periods or (y) any such provisions apply after the Latest Initial Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan(a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in Section 2.5 or in the Joinder Agreement Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h2.14(g) below) and ), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time Amendment and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to that any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended RevolvinPermitted Other Provi
Appears in 1 contract
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent, elect to Agent request the establishment of (i) one or more (x) additional tranches Classes of term loans or increases in Term Loans additional term loans of the same Class of any existing Class of term loans (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or (yii) additional tranches of revolving loans one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments in U.S. Dollars or any Alternative Currency (the “New Additional/Replacement Revolving Credit Commitments” ”, and, together with the New Incremental Term Loan CommitmentsLoans and the Incremental Revolving Credit Commitment Increases, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, by an aggregate amount not in excess of subject to Section 1.10, at the Maximum time that any such Incremental Facilities Amount Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior proviso to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (ab) of the definition of Maximum Incremental Facilities Amountbelow, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments(or, as applicable (and, otherwisein the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition or other Investment, no Event of Default under Section 12.1 11.1 or Section 12.5 11.5) shall exist have occurred and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments are effectedand each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 or like amount in an Alternative Currency, as applicable, (it being understood that such amount may be less than $5,000,000 or like amount in an Alternative Currency, as applicable, if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 or like amount in an Alternative Currency, as applicable, in excess thereof), and, subject to the satisfaction proviso at the end of this Section 2.14(b), the foregoing terms and conditionsaggregate amount of (x) the Incremental Term Loans, (a) with respect to New Incremental Revolving Credit Commitments, each of Commitment Increases and the Lenders with Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Class shall assign Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to each Lender with a New Section 1.10, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of such ClassTest Period, at the principal amount thereof, such interests that is no greater than either (x) 4.50:1.00 or (y) if Incurred in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchasesconnection with an Acquisition or other Investment, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect Consolidated First Lien Debt to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) Consolidated EBITDA Ratio immediately prior to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to Acquisition or other Investment (this clause (B), the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term LoanIncremental Ratio Debt Amount” and, together with the New Revolving Credit LoansIncremental Base Amount, the “Incremental LoansLimit”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement); provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Incremental Term Loans shall may be no shorter than the weighted average life to maturity (Incurred without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior regard to the Lien securing the ObligationsIncremental Limit, or that without regard to whether an Event of Default has occurred and is unsecuredcontinuing and, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, without regard to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and minimums set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision first part of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof2.14(b).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in that the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Net Cash Proceeds from such Incremental Term Loans may be optionally prepaid prior to are used on the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any Incurrence of its such Incremental Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extendedconcurrently therewith) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvineither
Appears in 1 contract
Sources: First Lien Credit Agreement (Grocery Outlet Holding Corp.)
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Effective Date, by written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect to request the establishment of one or more (xi) additional tranches of term loans or increases in Term Loans the amount of any Class the Special L/C Commitments (the commitments theretoeach such increase, the a “New Term Loan CommitmentsSpecial L/C Commitment Increase”), and/or ) or (yii) additional tranches of revolving loans or increases in Revolving Credit Commitments letter of any Class credit commitments (the each, an “New Revolving Credit CommitmentsIncremental Special L/C Facility” and, together with the New Term Loan Commitmentsany Special L/C Commitment Increase, the referred to herein as a “New Loan CommitmentsCredit Increase”); provided that (A) upon the effectiveness of any Incremental Amendment referred to below, by no Default or Event of Default shall exist, (B) the Borrower may make a maximum of four requests for a Credit Increase, and (C) the Borrower shall have received a Ratings Reaffirmation. Each Credit Increase shall be in an aggregate principal amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and that is not less than $5,000,000 individually 25,000,000 (or provided that such lesser amount as (x) may be approved by less than $25,000,000 if such amount represents all remaining availability under the Administrative Agent or (y) shall constitute limit set forth in the difference between next sentence). Notwithstanding anything to the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that contrary herein, the aggregate principal amount of all New Revolving Credit Commitments Increases shall not exceed (i) $35,000,000 during 150,000,000 or (ii) when taken together with any other Debt incurred pursuant to Section 5.02(b)(iii), $650,000,000.
(b) Any Incremental Special L/C Facility (i) shall rank pari passu in right of payment and of security with the term of this Agreement. In Special L/C Facility, (ii) shall not mature earlier than the Maturity Date, (iii) shall be treated substantially the same as the Special L/C Facility (in each case, including with respect to mandatory and voluntary prepayments), and (iv) if a Yield Differential exists, the Applicable Margin then in effect for Eurodollar Rate Advances shall be increased by the amount of such New Loan Commitments Yield Differential.
(c) Each notice from the Borrower pursuant to this Section 2.20 shall become effective as set forth the requested amount and proposed use and terms of the applicable Increased Amount Daterelevant Credit Increases and the requested allocation of such Credit Increases between the Tranche A Special L/C Facility and the Trance B Special L/C Facility. Credit Increases may be provided by any existing Lender Party (and each existing Lender will have the right to provide a portion of any Special L/C LSP Gen Finance Special L/C Facility Agreement Commitment Increase or Incremental Special L/C Facility, in each case on the terms permitted in this Section 2.20 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other bank or financial institution (any such bank or other financial institution being called an “Additional Lender”); provided that (i) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent and, in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction case of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitmentsa Special L/C Commitment Increase, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer Applicable Special L/C Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to such New Revolving Loan Lenders or Additional Lender’s providing such New Revolving Credit Special L/C Commitment to the extent such consentIncreases or Special L/C Facility, if any, such consent would be required under Section 14.6(b) for in connection with an assignment of Revolving Loans Special L/C Advances or Revolving Credit Special L/C Commitments, as applicable, applicable to such New Revolving Loan Lender.
Lender or Additional Lender and (cii) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject one or more existing Issuing Banks or Additional Lenders shall have agreed to the satisfaction of the foregoing terms and conditions, (i) each Lender with provide a New Term Loan Special L/C Issuing Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment the aggregate principal amount of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Special L/C Commitment of such Series and the New Term Loans of such Series made pursuant theretoIncrease or Incremental Special L/C Facility.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term LoansCredit Increases shall become Special L/C Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as applicableappropriate, the other Loan Documents, executed by more than (i) in the case of any Borrower, each Lender agreeing to provide such New Term Loans denominated in U.S. DollarsCommitment, 0.50%if any, each Additional Lender, if any, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) Administrative Agent. The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement Amendment may, without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Loan Documents as may be necessary or appropriate, appropriate in the reasonable opinion of the Administrative Agent, Agent and the Borrower to effect the provision provisions of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment 2.20. The effectiveness of any New Revolving Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 3.02 and such other conditions as the parties thereto shall agree.
(e) Credit Commitments denominated Increases shall be available solely for the purposes described in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class Section 2.19.
(f) No Lender Party shall be obligated to provide any Credit Increase, unless it so agrees.
(g) Upon each increase in the Tranche A Special L/C Commitments or the Tranche B Special L/C Commitments, as applicable, pursuant to clause (a)(ii)(A) of this Section 2.20, each Applicable 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 Special L/C Commitment Increase (each a “Special L/C Commitment Increase Lender”) in respect of such increase, and each such Special L/C Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Applicable Lender’s participations hereunder in outstanding Tranche A Special Letters of Credit or Tranche B Special Letters of Credit, as applicable, such that after giving effect to each such New Term Loans deemed assignment and New Term Loan assumption of participations, the percentage of the aggregate outstanding participations hereunder in Tranche A Special Letters of Credit or Tranche B Special Letters of Credit, as applicable, held by each Special L/C Lender (including each such Special L/C Commitment Increase Lender) will equal the percentage of the aggregate Tranche A Special L/C Commitments or Tranche B Special L/C Commitments, as applicable, of all Applicable Lenders represented by such Lender’s Special L/C Commitment and if, on the date of such increase, there are fungible for U.S. federal income tax purposes any Tranche A Special L/C Advances or Tranche B Special L/C Advances, as applicable, outstanding, such Special L/C Advances shall on or prior to the LSP Gen Finance Special L/C Facility Agreement effectiveness of such Special L/C Commitment Increase be prepaid from the proceeds of additional Tranche A Special L/C Advances or Tranche B Special L/C Advances, as applicable, made hereunder (it being understood that, if necessary to consummate reflecting such increase in such Class of Term Loans Special L/C Commitments), which is intended to prepayment shall be fungible for U.S. federal income tax purposes, the accompanied by accrued interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted Special L/C Advances being prepaid and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed costs incurred by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower Lender in effectuating such adjustments to an existing Class of Term Loans in respect thereofaccordance with Section 9.04(c).
(ih) The Borrower may at This Section 2.20 shall supersede any time, and from time to time, request that all provision in Section 2.17 or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice 9.01 to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were convertedcontrary.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin
Appears in 1 contract
Sources: Special Letter of Credit Facility Agreement (Dynegy Inc /Il/)
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent, elect to request the establishment of (i) one or more (x) additional tranches Classes of term loans or increases in Term Loans additional term loans of the same Class as any existing Class of term loans (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or or (yii) additional tranches of revolving loans one or more increases in the amount of the Revolving Credit Commitments of any Class (the each such increase, an “New Incremental Revolving Credit CommitmentsCommitment Increase” and, together with the New Incremental Term Loan CommitmentsLoans, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”), by .
(b) Each tranche of Incremental Term Loans and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and that is not less than $5,000,000 individually (or provided that such lesser amount as (x) may be approved by less than $5,000,000 if such amount represents all remaining availability under the Administrative Agent or limit set forth below) (yand in minimum increments of $1,000,000 in excess thereof), and the aggregate amount of (X) shall constitute the difference between Incremental Term Loans and Incremental Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior use of the proceeds thereof) Incurred pursuant to such datethis Section 2.14(b); provided that , plus (Y) the aggregate principal amount of all New Revolving Credit Commitments Permitted Additional Debt Incurred under Section 10.1(w) shall not exceed $35,000,000 during the term of this Agreement. In each caseexceed, such New Loan Commitments shall become effective as of the applicable Increased date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, after giving Pro Forma Effect to such Incurrence (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that (i) all Incremental Revolving Credit Commitment Increases then outstanding were fully drawn and (ii) all Incremental Commitments and all Permitted Additional Debt incurred under Section 10.1(w) constitute Consolidated Secured Debt (whether or not such Indebtedness is in fact secured)), the Borrower would not have a Consolidated Secured Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a Pro Forma Basis, as if such Incurrence (and transactions) had occurred on the first day of such Test Period, greater than 3.25:1.00 (the “Incremental Limit”).
(A) The Incremental Term Loans (i) shall rank equal in right of payment and, if secured, equal or junior in right of security with the Initial Term Loans (and shall be secured only by all or a portion of the Collateral securing the Obligations), (ii) shall not mature earlier than the Initial Term Loan Maturity Date, (iii) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (iv) shall have the same optional and mandatory prepayment terms as the Initial Term Loans, (v) shall have a maturity date (subject to clause (ii)), an amortization schedule (subject to clause (iii)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided that, in the event that the Effective Yield for any Incremental Term Loans is greater than the Effective Yield for the Initial Term Loans by more than 0.50%, then the Applicable Margins for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for the Incremental Term Loans minus 0.50%; and (vi) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that (ix) except with respect to New Loan Commitments incurred in reliance of clause matters contemplated by clauses (a) of the definition of Maximum Incremental Facilities Amountii), no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments(iii), as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5iv) and (iiv) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants Table of Contents and other provisions applicable only to periods after the Latest Maturity Date), (y) the New Loan Commitments terms and conditions applicable to the Incremental Term Loans shall not, taken as a whole and as reasonably determined by the Borrower, be more favorable to the Lenders and/or Additional Lenders providing such Incremental Term Loans than the terms and conditions applicable to the Initial Term Loans and (z) the documentation governing any Incremental Term Loans may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility.
(B) The Incremental Revolving Credit Commitment Increase shall be effected pursuant treated the same as the Revolving Credit Commitments (including with respect to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register maturity date thereof) and shall be subject considered to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election be part of the Borrower Revolving Credit Facility (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate margins, rate floors and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New undrawn commitment fees on the Revolving Credit Commitments may be incurred in Dollars increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Credit Commitment Increase (without any other currency at the election of the Borrower and agreed requirement to by the Administrative Agent in its sole discretion. No Lender shall be required pay such fees to provide any New Loan Commitmentsexisting Revolving Credit Lenders)).
(bd) On any Increased Amount Date on which New Each notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases and shall contain a confirmation that the lenders providing such Incremental Term Loans or Incremental Revolving Commitments are effectedexisting Lenders or would otherwise constitute Eligible Assignees. Incremental Term Loans may be made, and Incremental Revolving Credit Commitment Increases may be provided, subject to the satisfaction prior written consent of the foregoing terms and conditionsBorrower (not to be unreasonably withheld), by any existing Lender (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each it being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation to make a New Revolving Credit Commitment (each, a “New Revolving portion of any Incremental Term Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders no existing Lender with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under will have any obligation to provide a New portion of any Incremental Revolving Credit Commitment Increase) or by any other bank, financial institution, other institutional lender or other investor that would constitute an Eligible Assignee (a any such other bank, financial institution or other investor being called an “New Revolving Credit LoanAdditional Lender”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto); provided that the Administrative 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 Incremental Revolving Credit Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided further that, solely with respect to any Incremental Revolving Credit Commitment Increases, the Swingline Lender and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayedwithheld) to such New Revolving Loan Additional Lender’s providing such New Incremental Revolving Credit Commitment to the extent Increases if such consent, if any, consent would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender or Additional Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans Commitments in respect of such New Incremental Term Loans exceeds the Effective Yield for Term SOFR Loans and Incremental Revolving Credit Commitment Increases shall become Commitments (or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable an Incremental Revolving Credit Maturity Date of each Series shall Commitment Increase to be no earlier than the provided by an existing Lender with a Revolving Credit Maturity DateCommitment, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the Lender’s applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin
Appears in 1 contract
Sources: Credit Agreement (Amsurg Corp)
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect to request (i) the establishment addition of one or more (x) additional tranches of term loans (the “Incremental Term Loans”) to the Credit Facilities, (ii) one or more increases in Term Loans the amount of any Class (the commitments thereto, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) the addition of one or more Classes of revolving credit commitments (the “New Additional/Replacement Revolving Credit Commitments” and”, and together with the New Incremental Term Loan CommitmentsLoans and the Incremental Revolving Credit Commitment Increases, the “New Loan Incremental Facilities”; and the commitments in respect thereof are referred to as the “Incremental Commitments”), by an aggregate amount not in excess of ) to the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date)Credit Facilities; provided that, subject to Section 1.10, both at the time of any such request and at the time that the aggregate principal amount of all New any such Incremental Term Loan, Incremental Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (iand after giving effect thereto) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect (or, in the case of any Incremental Facility established to such New Loan Commitments, as applicable (and, otherwisefinance an acquisition permitted hereunder or bona fide Investment, no Event of Default under Section 12.1 11.1 or Section 12.5 11.5) has occurred and is continuing or would exist; (b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall exist be in an aggregate principal amount that is not less than $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and be continuingin minimum increments of $1,000,000 in excess thereof); provided, furtherand the aggregate amount of the Incremental Term Loans, that in connection with a Limited Condition TransactionIncremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments shall not exceed, at the time of such Increased Amount Date incurrence thereof and at after giving Pro Forma Effect thereto and the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election use of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount proceeds thereof, the Incremental Amount at such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreementtime; provided that (i) Incremental Term Loans may be incurred without regard to the applicable New Incremental Amount and without regard to whether an Event of Default has occurred and is continuing, to the extent that the Net Cash Proceeds from such Incremental Term Loan Maturity Date Loans are used on the date of each Series shall be no earlier than incurrence of such Incremental Term Loans to prepay Term Loans in accordance with the Initial Term Loan Maturity Dateprocedures set forth in Section 5.2(a)(i), if applicable, and (ii) the weighted average life to maturity of all New Term Loans shall Additional/Replacement Revolving Credit Commitments may be no shorter than the weighted average life to maturity (provided without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior regard to the Lien securing the Obligations, or that Incremental Amount and without regard to whether an Event of Default has occurred and is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basiscontinuing, to the Second Lien Intercreditor Agreement.extent that the existing Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided. (c)
(ei) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are (A) shall rank pari passu in right of payment and secured by the Collateral on a pari passu basis of security with the Amendment No. 5 Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (iB) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that secured only by the Effective Yield in respect of the Initial Term Loans or prior New Term LoansCollateral, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined borrowed only by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no guaranteed only by the Guarantors, (C) shall not mature
(ii) The Incremental Revolving Credit Commitment Increase shall be treated and have terms that are the same as the Revolving Credit Commitments (including with respect to maturity date thereof) and shall be considered to be part of the Revolving Credit Facility (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Credit Facility may be increased and additional upfront or similar fees may be payable to the Incremental Revolving Credit Commitment Increase Lenders).
(iii) The Additional/Replacement Revolving Credit Commitments (A) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, (B) shall be secured only by the Collateral, shall be borrowed only by the Borrower and shall be guaranteed only by the Guarantors, (C) shall not mature earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be require no earlier than mandatory commitment reduction prior to the Revolving Credit Maturity Date, (iiD) no Subsidiary of Holdings shall have interest rates (other than including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts and original issue discounts (subject to clause (d) below) and prepayment premiums as determined by the Borrower or a Guarantorand the lenders of such commitments, (E) is an obligor shall contain borrowing, repayment and termination of commitment procedures as determined by the Borrower and the lenders of such commitments, (iiiF) if may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the New overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to Swingline Loans and Letters of Credit with respect to the Revolving Credit Commitments are secured, are not secured by a Lien on any assets or otherwise reasonably acceptable to the Administrative Agent and (G) may otherwise have terms and conditions different from those of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans Facility; provided that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments except with respect to alternative currency in connection with matters contemplated by clauses (C), (D), (E) and (F) above) any differences shall be reasonably satisfactory to the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes Administrative Agent (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without extent that any financial maintenance covenant is added for the benefit of any Additional/Replacement Revolving Credit Commitments, no consent of such existing Lenders; it being understood and agreed by the parties hereto that shall be required from the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the other Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in that such financial maintenance covenant is also added for the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion benefit of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(iiFacility). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin.
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Incremental Facilities. (a) The Borrower mayor any other Guarantor may at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent, elect to Agent request the establishment of (i) one or more (x) additional tranches Classes of term loans, which may be provided in Dollars, or in any Alternative Currency, as applicable, or additional term loans of the same Class of any existing Class of term loans, which may be provided in the same currency as the existing Class of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or (yii) additional tranches of revolving loans one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments, which commitments may be in Dollars, in any Alternative Currency or any combination thereof (the “New Additional/Replacement Revolving Credit Commitments” ”, and, together with the New Incremental Term Loan CommitmentsLoans and the Incremental Revolving Credit Commitment Increases, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, by an aggregate amount not in excess of subject to Section 1.11, at the Maximum time that any such Incremental Facilities Amount Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior proviso to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (ab) of the definition of Maximum Incremental Facilities Amountbelow, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments(or, as applicable (andin the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition, otherwiseother Investment or similar transactions or any repayment, prepayment, redemption, repurchase, defeasance, satisfaction and discharge or other Refinancing or similar payment in respect of Indebtedness or Capital Stock and that, in the case of Capital Stock, requires irrevocable notice in advance thereof, no Event of Default under Section 12.1 11.1 or Section 12.5 11.5) shall exist have occurred and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments are effectedand each Incremental Revolving Credit Commitment Increase shall be, unless otherwise agreed by the Administrative Agent, in an aggregate principal amount that is not less than $5,000,000 or, in the case of Incremental Term Loans, Additional/Replacement Revolving Credit Commitments or an Incremental Revolving Credit Commitment Increase denominated in an Alternative Currency, €5,000,000, CAN$5,000,000, £5,000,000, A$5,000,000 or like amount in any other Alternative Currency, as applicable, (it being understood that such amount may be less than such amount if such amount represents all remaining availability under the limit set forth below) (and, unless otherwise agreed by the Administrative Agent, in minimum increments of $1,000,000 (or, in the case of Incremental Term Loans, Additional/Replacement Revolving Credit Commitments or an Incremental Revolving Credit Commitment Increase denominated in an Alternative Currency, €1,000,000, CAN$1,000,000, £1,000,000, A$1,000,000 or like amount in any other Alternative Currency, as applicable) in excess thereof), and, subject to the satisfaction proviso at the end of this Section 2.14(b), the foregoing terms and conditionsaggregate amount of (x) the Incremental Term Loans, (a) with respect to New Incremental Revolving Credit Commitments, each of Commitment Increases and the Lenders with Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Class shall assign Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to each Lender with a New Section 1.11, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of such ClassTest Period, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchasesthat is no greater than 4.00:1.00 (this clause (B), the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term LoanIncremental Ratio Debt Amount” and, together with the New Revolving Credit LoansIncremental Base Amount, the “Incremental LoansLimit”); provided that (i) Incremental Term Loans may be Incurred without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in an amount equal the first part of this Section 2.14(b), to its New the extent that the Net Cash Proceeds from such Incremental Term Loan Commitment Loans are used on the date of Incurrence of such SeriesIncremental Term Loans (or substantially concurrently therewith) to either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 5.2(a)(i) or (y) permanently reduce the Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments in accordance with the procedures set forth in Section 5.2(e)(ii) (and any such Incremental Term Loans shall be deemed to have been Incurred pursuant to this proviso), and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect Additional/Replacement Revolving Credit Commitments may be provided without regard to the New Term Loan Commitment Incremental Limit, without regard to the minimums set forth in the first sentence of this Section 2.14(b) and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments, Extended Revolving Credit Commitments or other Additional/Replacement Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided (and any such Series and the New Term Loans of such Series made Additional/Replacement Revolving Credit Commitments shall be deemed to have been Incurred pursuant theretoto this proviso).
(di) The Incremental Term Loans (A) shall be secured on an equal priority basis with, and only by all or a portion of, the Collateral securing the Obligations (and which may be equal or junior in right of payment with the Initial Term Loans) and shall only be guaranteed by the Credit Parties, (B) shall not mature earlier than the Latest Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans; provided, that, notwithstanding the foregoing, any customary bridge facility (so long as the long-term Indebtedness into which any such customary bridge facility is to be converted or exchanged otherwise satisfies the requirements of clauses (B) and (C) of this Section 2.14(c) and, in the case of a lending facility, such conversion or exchange is subject only to conditions customary for similar conversions or exchanges), customary term loan “A” facilities provided by commercial banks or similar financial institutions (as determined by the Borrower in good faith) and Incremental Term Loans that are Incurred in connection with an Acquisition, Investment or other similar transaction, or to the extent such Incremental Term Loans or Incremental Commitments are subject to Customary Escrow Provisions (so long as the Indebtedness that is released from escrow otherwise satisfies the requirements of clause (B) and this clause (C)), may be Incurred without regard to clause (B) and/or (C) of this Section 2.14(c)(i), (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates or payment-in-kind interest), pricing, interest rate margins, rate floors, fees, AHYDO Catch-Up Payments, funding discounts, original issue discounts, closing payments, maturity, currency types (subject, in the case of currency types other than Dollars, Euros and the Alternative Currencies, to the consent of the Administrative Agent, such consent not to be unreasonably withheld) and denominations and prepayment terms and provisions of premiums for the New Incremental Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth the lenders of the Incremental Term Loans; provided that, during the period commencing on the Closing Date and ending on the date that is 24 months after the Closing Date, in the Joinder Agreement; provided event that the Effective Yield for any Incremental Term Loans (iother than Incremental Term Loans (1) established pursuant to the applicable New Term Loan Maturity Date proviso of each Series shall be no earlier Section 2.14(b), (2) having a final maturity date that is more than one year after the Initial Term Loan Maturity Date, (ii3) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75(4) [reserved] or (5) in an aggregate principal amount equal to or less than the greater of (x) $720,000,000 and (y) 100.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date such transaction occurs (measured as of such date) based upon the Internal Financial Statements most recently available on or prior to such date; provided that this clause (5) shall be an aggregate basket and not measured per Incurrence of Incremental Term Loans (clauses (1) through (5), collectively, the “MFN Exceptions”)) is greater than the Effective Yield for the Initial Term Loans by more than 0.50%, then the Applicable Margin Margins for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted increased to the extent necessary so that the Effective Yield in respect of for the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Incremental Term Loans denominated in U.S. DollarsDollars minus 0.50% (this proviso, 0.50%the “MFN Protection”); provided, and further, that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Eurocurrency Rate, for purposes of calculating the applicable increase (iiif any) in the case of any such New Applicable Margins for the Initial Term Loans denominated in a currency other than U.S. Dollarsthe immediately preceding proviso, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Applicable Margin for such Incremental Term Loans shall be on deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable Reference Rate; (E) may be denominated in Dollars, Euros, or any other Alternative Currency or any combination thereof and (F) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and (E) above (except for covenants and other provisions or requirements applicable only to the periods after the Latest Maturity Date), any differences shall be, at the option of the Borrower, either (1) reasonably satisfactory to the Administrative Agent, (2) consistent with market terms and conditions, when taken as a whole, at the time of Incurrence or effectiveness of such Incremental Facility (as determined by the Borrower in good faith) or (3) not be materially more restrictive on the Borrower and set forth its Restricted Subsidiaries than the terms of this Agreement, when taken as a whole and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Covenant for the benefit of each Credit Facility.
(ii) The Incremental Revolving Credit Commitment Increase shall be treated the same as the Class of Revolving Credit Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders participating in the Joinder Agreement; provided, that Incremental Revolving Credit Commitment Increase (iwithout any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) any applicable New The Additional/Replacement Revolving Loan Repayment Date of each Series Credit Commitments (A) shall be no secured only by all or a portion of the Collateral securing the Obligations on an equal priority basis with the Obligations and shall only be guaranteed by the Credit Parties, (B) shall not mature earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be require no earlier than scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (iiC) no Subsidiary of Holdings shall have interest rates (other than the Borrower including through fixed interest rates or a Guarantor) is an obligor and payments in-kind interest), pricing, interest margins, rate floors, fees, undrawn commitment fees, AHYDO Catch-Up Payments, funding discounts, original issue discounts, closing payments, currency types (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basiscurrency types other than Dollars, Euros and the other Alternative Currencies, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended consent not to be fungible for U.S. federal income tax purposesunreasonably withheld) and denominations, the interest rate margins prepayment terms and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted premiums and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood commitment reduction and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations termination terms as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made determined by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount lenders of such Term Loans commitments, (any such Term Loans which have been so convertedD) may include provisions relating to swingline loans and/or letters of credit, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loansas applicable, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be establishedissued thereunder, which issuances, in the case of letters of credit, shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the Existing Term Loan terms relating to the Swingline Loans and Letters of Credit with respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (other than for E) may otherwise have terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date conditions different from those of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term LoanRevolving Credit Facility; provided, however, provided that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement except with respect to the Existing Term Loan Class from which such Extended Term Loans were convertedmatters contemplated by clauses (B), in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) belowC), (D) and (yE) (A) above, any differences shall be, at the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion option of the Revolving Credit Commitments of any ClassBorrower, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request either (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”i) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice reasonably satisfactory to the Administrative Agent (who shall provide except for covenants and other provisions or requirements applicable only to the periods after the Latest Maturity Date), (ii) consistent with market terms and conditions, when taken as a copy whole, at the time of the Incurrence or effectiveness of such notice to each Incremental Facility (as determined by the Borrower in good faith) or (iii) not be materially more restrictive on the Borrower and its Restricted Subsidiaries than the terms of this Agreement, when taken as a whole and (y) the Lenders of the applicable Class of Existing documentation governing any Additional/Replacement Revolving Credit Commitments which may include any Previously Absent Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such request Previously Absent Covenant for the benefit of each Credit Facility (provided, further, however, that, if the applicable Previously Absent Covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Covenant shall be offered equally automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)).
(d) Each notice from the Borrower pursuant to all such Lenders) setting this Section 2.14 shall be given in writing and shall set forth the requested amount, currency types and denominations and proposed terms of the Extended relevant Incremental Term Loans, Incremental Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Commitment Increases or Additional/Replacement Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments . Incremental Term Loans may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional feesmade, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended RevolvinIncreme
Appears in 1 contract
Sources: Credit Agreement (MultiPlan Corp)
Incremental Facilities. (a) The Borrower mayor any other Guarantor may at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent, elect to Agent request the establishment of (i) one or more (x) additional tranches Classes of term loans, which may be provided in Dollars, or in any Alternative Currency, as applicable, or additional term loans of the same Class of any existing Class of term loans, which may be provided in the same currency as the existing Class of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or (yii) additional tranches of revolving loans one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments, which commitments may be in Dollars, in any Alternative Currency or any combination thereof (the “New Additional/Replacement Revolving Credit Commitments” ”, and, together with the New Incremental Term Loan CommitmentsLoans and the Incremental Revolving Credit Commitment Increases, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, by an aggregate amount not in excess of subject to Section 1.11, at the Maximum time that any such Incremental Facilities Amount Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior proviso to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (ab) of the definition of Maximum Incremental Facilities Amountbelow, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments(or, as applicable (andin the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition, otherwiseother Investment or similar transactions or any repayment, prepayment, redemption, repurchase, defeasance, satisfaction and discharge or other Refinancing or similar payment in respect of Indebtedness or Capital Stock and that, in the case of Capital Stock, requires irrevocable notice in advance thereof, no Event of Default under Section 12.1 11.1 or Section 12.5 11.5) shall exist have occurred and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments are effectedand each Incremental Revolving Credit Commitment Increase shall be, unless otherwise agreed by the Administrative Agent, in an aggregate principal amount that is not less than $5,000,000 or, in the case of Incremental Term Loans, Additional/Replacement Revolving Credit Commitments or an Incremental Revolving Credit Commitment Increase denominated in an Alternative Currency, €5,000,000, CAN$5,000,000, £5,000,000, A$5,000,000 or like amount in any other Alternative Currency, as applicable, (it being understood that such amount may be less than such amount if such amount represents all remaining availability under the limit set forth below) (and, unless otherwise agreed by the Administrative Agent, in minimum increments of $1,000,000 (or, in the case of Incremental Term Loans, Additional/Replacement Revolving Credit Commitments or an Incremental Revolving Credit Commitment Increase denominated in an Alternative Currency, €1,000,000, CAN$1,000,000, £1,000,000, A$1,000,000 or like amount in any other Alternative Currency, as applicable) in excess thereof), and, subject to the satisfaction proviso at the end of this Section 2.14(b), the foregoing terms and conditionsaggregate amount of (x) the Incremental Term Loans, (a) with respect to New Incremental Revolving Credit Commitments, each of Commitment Increases and the Lenders with Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Class shall assign Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to each Lender with a New Section 1.11, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of such ClassTest Period, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchasesthat is no greater than 4.00:1.00 (this clause (B), the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term LoanIncremental Ratio Debt Amount” and, together with the New Revolving Credit LoansIncremental Base Amount, the “Incremental LoansLimit”); provided that (i) Incremental Term Loans may be Incurred without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in an amount equal the first part of this Section 2.14(b), to its New the extent that the Net Cash Proceeds from such Incremental Term Loan Commitment Loans are used on the date of Incurrence of such SeriesIncremental Term Loans (or substantially concurrently therewith) to either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 5.2(a)(i) or (y) permanently reduce the Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments in accordance with the procedures set forth in Section 5.2(e)(ii) (and any such Incremental Term Loans shall be deemed to have been Incurred pursuant to this proviso), and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect Additional/Replacement Revolving Credit Commitments may be provided without regard to the New Term Loan Commitment Incremental Limit, without regard to the minimums set forth in the first sentence of this Section 2.14(b) and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments, Extended Revolving Credit Commitments or other Additional/Replacement Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided (and any such Series and the New Term Loans of such Series made Additional/Replacement Revolving Credit Commitments shall be deemed to have been Incurred pursuant theretoto this proviso).
(di) The Incremental Term Loans (A) shall be secured on an equal priority basis with, and only by all or a portion of, the Collateral securing the Obligations (and which may be equal or junior in right of payment with the Initial Term Loans) and shall only be guaranteed by the Credit Parties, (B) shall not mature earlier than the Latest Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans; provided, that, notwithstanding the foregoing, any customary bridge facility (so long as the long-term Indebtedness into which any such customary bridge facility is to be converted or exchanged otherwise satisfies the requirements of clauses (B) and (C) of this Section 2.14(c) and, in the case of a lending facility, such conversion or exchange is subject only to conditions customary for similar conversions or exchanges), customary term loan “A” facilities provided by commercial banks or similar financial institutions (as determined by the Borrower in good faith) and Incremental Term Loans that are Incurred in connection with an Acquisition, Investment or other similar transaction, or to the extent such Incremental Term Loans or Incremental Commitments are subject to Customary Escrow Provisions (so long as the Indebtedness that is released from escrow otherwise satisfies the requirements of clause (B) and this clause (C)), may be Incurred without regard to clause (B) and/or (C) of this Section 2.14(c)(i), (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates or payment-in-kind interest), pricing, interest rate margins, rate floors, fees, AHYDO Catch-Up Payments, funding discounts, original issue discounts, closing payments, maturity, currency types (subject, in the case of currency types other than Dollars, Euros and the Alternative Currencies, to the consent of the Administrative Agent, such consent not to be unreasonably withheld) and denominations and prepayment terms and provisions of premiums for the New Incremental Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth the lenders of the Incremental Term Loans; provided that, during the period commencing on the Closing Date and ending on the date that is 24 months after the Closing Date, in the Joinder Agreement; provided event that the Effective Yield for any Incremental Term Loans (iother than Incremental Term Loans (1) established pursuant to the applicable New Term Loan Maturity Date proviso of each Series shall be no earlier Section 2.14(b), (2) having a final maturity date that is more than one year after the Initial Term Loan Maturity Date, (ii3) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75(4) [reserved] or (5) in an aggregate principal amount equal to or less than the greater of (x) $720,000,000 and (y) 100.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date such transaction occurs (measured as of such date) based upon the Internal Financial Statements most recently available on or prior to such date; provided that this clause (5) shall be an aggregate basket and not measured per Incurrence of Incremental Term Loans (clauses (1) through (5), collectively, the “MFN Exceptions”)) is greater than the Effective Yield for the Initial Term Loans by more than 0.50%, then the Applicable Margin Margins for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted increased to the extent necessary so that the Effective Yield in respect of for the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Incremental Term Loans denominated in U.S. DollarsDollars minus 0.50% (this proviso, 0.50%the “MFN Protection”); provided, and further, that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to Term SOFR or the Eurocurrency Rate, for purposes of calculating the applicable increase (iiif any) in the case of any such New Applicable Margins for the Initial Term Loans denominated in a currency other than U.S. Dollarsthe immediately preceding proviso, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Applicable Margin for such Incremental Term Loans shall be on deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable Reference Rate; (E) may be denominated in Dollars, Euros, or any other Alternative Currency or any combination thereof and (F) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and (E) above (except for covenants and other provisions or requirements applicable only to the periods after the Latest Maturity Date), any differences shall be, at the option of the Borrower, either (1) reasonably satisfactory to the Administrative Agent, (2) consistent with market terms and conditions, when taken as a whole, at the time of Incurrence or effectiveness of such Incremental Facility (as determined by the Borrower in good faith) or (3) not be materially more restrictive on the Borrower and set forth its Restricted Subsidiaries than the terms of this Agreement, when taken as a whole and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Covenant for the benefit of each Credit Facility.
(ii) The Incremental Revolving Credit Commitment Increase shall be treated the same as the Class of Revolving Credit Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders participating in the Joinder Agreement; provided, that Incremental Revolving Credit Commitment Increase (iwithout any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) any applicable New The Additional/Replacement Revolving Loan Repayment Date of each Series Credit Commitments (A) shall be no secured only by all or a portion of the Collateral securing the Obligations on an equal priority basis with the Obligations and shall only be guaranteed by the Credit Parties, (B) shall not mature earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be require no earlier than scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (iiC) no Subsidiary of Holdings shall have interest rates (other than the Borrower including through fixed interest rates or a Guarantor) is an obligor and payments in-kind interest), pricing, interest margins, rate floors, fees, undrawn commitment fees, AHYDO Catch-Up Payments, funding discounts, original issue discounts, closing payments, currency types (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basiscurrency types other than Dollars, Euros and the other Alternative Currencies, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended consent not to be fungible for U.S. federal income tax purposesunreasonably withheld) and denominations, the interest rate margins prepayment terms and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted premiums and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood commitment reduction and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations termination terms as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made determined by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount lenders of such Term Loans commitments, (any such Term Loans which have been so convertedD) may include provisions relating to swingline loans and/or letters of credit, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loansas applicable, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be establishedissued thereunder, which issuances, in the case of letters of credit, shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the Existing Term Loan terms relating to the Swingline Loans and Letters of Credit with respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (other than for E) may otherwise have terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date conditions different from those of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term LoanRevolving Credit Facility; provided, however, provided that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement except with respect to the Existing Term Loan Class from which such Extended Term Loans were convertedmatters contemplated by clauses (B), in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) belowC), (D) and (yE) (A) above, any differences shall be, at the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion option of the Revolving Credit Commitments of any ClassBorrower, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request either (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”i) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice reasonably satisfactory to the Administrative Agent (who shall provide except for covenants and other provisions or requirements applicable only to the periods after the Latest Maturity Date), (ii) consistent with market terms and conditions, when taken as a copy whole, at the time of the Incurrence or effectiveness of such notice to each Incremental Facility (as determined by the Borrower in good faith) or (iii) not be materially more restrictive on the Borrower and its Restricted Subsidiaries than the terms of this Agreement, when taken as a whole and (y) the Lenders of the applicable Class of Existing documentation governing any Additional/Replacement Revolving Credit Commitments which may include any Previously Absent Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such request Previously Absent Covenant for the benefit of each Credit Facility (provided, further, however, that, if the applicable Previously Absent Covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Covenant shall be offered equally automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)).
(d) Each notice from the Borrower pursuant to all such Lenders) setting this Section 2.14 shall be given in writing and shall set forth the requested amount, currency types and denominations and proposed terms of the Extended relevant Incremental Term Loans, Incremental Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Commitment Increases or Additional/Replacement Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments . Incremental Term Loans may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvinmade
Appears in 1 contract
Sources: Credit Agreement (MultiPlan Corp)
Incremental Facilities. (a) The Borrower may, by Upon written notice to the Administrative AgentAgent (which shall promptly notify the Lenders), elect to at any time after the Closing Date, (i) the Lead Borrower may request the establishment of (i) one or more (x) additional tranches of term loans or increases in any then-existing Term Loans Facility (other than the Delayed Draw Term Facility) (each an “Incremental Term Commitment” and all of any Class (the commitments theretothem, collectively, the “New Incremental Term Loan Commitments”), and/or ) and (yii) each Borrower may request one or more additional tranches of revolving loans commitments or increases in Revolving Credit Commitments the aggregate amount of any Class of Revolving Credit Commitments, including increases in the Letter of Credit Sublimit to the extent consented to by each affected L/C Issuer (each an “Incremental Revolving Credit Commitment” and all of them, collectively, the “New Incremental Revolving Credit Commitments” and, together with the New Incremental Term Loan Commitments, the “New Loan Incremental Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments no Lender shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect be required to New Loan Commitments incurred participate in reliance of clause (a) of the definition of Maximum any Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing)Facility; provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all any such assignments and purchasesaddition, the Revolving Credit Loans aggregate principal amount of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Incremental Commitments that have been added pursuant to this Section 2.14 shall not exceed the sum of such Class after giving effect to (x) the addition Fixed Dollar Amount minus the aggregate principal amount of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment Incremental Second Lien Commitments that have been added pursuant to clause (a “New Revolving Credit Loan”x) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction 2.14 of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Second Lien Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that Permitted Other Indebtedness incurred under clause (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvinthe
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, by written notice to the Administrative Agent, elect to request (i) the establishment of one or more (x) additional tranches of new term loans or increases in Term Loans of any Class loan commitments (the commitments thereto“New Term Commitments”) and/or (ii) prior to the latest Revolving Maturity Date at such time, an increase to the existing Revolving Commitments, in each case, to the extent agreed by the Persons providing the same, denominated in dollars or an Alternative Currency (any such increase, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate in a principal amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and (A) not less than the Dollar Equivalent of $5,000,000 50,000,000 individually (or such lesser amount as (x) may which shall be reasonably approved by the Administrative Agent or (y) that shall constitute the difference between remaining available amount of New Commitments permitted to be established pursuant to and in accordance with this Section 2.24(a) after giving effect to the Maximum Incremental Facilities Amount aggregate amount of New Commitments established pursuant to this Section 2.24(a) after the Closing Date and all such New Loan Commitments obtained on or prior to such date), and integral multiples of the Dollar Equivalent of $5,000,000 in excess thereof, and (B) not to exceed, for all New Commitments established pursuant to this Section 2.24(a), an aggregate amount (the “Maximum Incremental Amount”) equal to the sum of the Dollar Equivalent of (1) $750,000,000 plus (2) an amount equal to the Consolidated Cash Flow of the Borrower for the period of four consecutive fiscal quarters most recently ended on or prior to the date on which such New Commitments are established multiplied by 25%; provided that the Maximum Incremental Amount shall be deemed to be not less than the Dollar Equivalent of $1,250,000,000; provided, further, that the Maximum Incremental Amount shall be reduced by the aggregate principal amount of any New Commitments established prior to such date and the aggregate principal amount of any Incremental Equivalent Debt incurred prior to such date. Any such New Commitments established pursuant to this Section 2.24(a) shall be subject to any restrictions thereon set forth in Sections 6.01 and 6.02. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent; provided that the Borrower shall first offer the Lenders, on a pro rata basis, the opportunity to provide all of the New Commitments prior to offering such opportunity to any other Person that is an eligible assignee pursuant to and in accordance with Section 9.04(b), subject to the prior written consent of the Administrative Agent and, in the case of New Revolving Credit Commitments shall not exceed $35,000,000 during Commitments, the term of this Agreement. In Issuing Banks and the Swingline Lender, in each case, to the extent required pursuant to Section 9.04(b) as if such New Loan Revolving Lender were an assignee; provided, further, that any Lender offered or approached to provide all or a portion of the New Commitments may elect or decline, in its sole discretion, to provide a New Commitment. Such New Commitments shall become effective as of the applicable such Increased Amount Date; provided that (i1) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such New Loan Commitments, as applicable (andor, otherwisesubject to Section 1.05, if the proceeds of the loans made pursuant to such New Commitments are used to finance a Limited Condition Transaction, no Event of Default under Section 12.1 pursuant to clauses (b), (c), (g) or Section 12.5 (h) of Article VII shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of on such Increased Amount Date immediately before or immediately after giving effect to such New Commitments, as applicable); (2) subject to Section 1.05, both before and at after giving effect to the time a definitive agreement is entered into making of any Series of New Term Loans or New Revolving Loans, the condition set forth in respect Section 4.01(d) shall be satisfied; (3) subject to Section 1.05, the Borrower and its Subsidiaries shall be in pro forma compliance with each of such Limited Condition Transaction, there is no Event the covenants set forth in Sections 6.11 and 6.12 as of Default under Section 12.1 or Section 12.5the last day of the most recently ended fiscal quarter for which financial statements are required to be delivered pursuant to Sections 5.04(a) and 5.04(b) immediately after giving effect to such New Commitments and any Investment to be consummated in connection therewith; (ii4) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower Borrower, the Lenders providing such New Commitments and the Administrative Agent and such lenders providing the New Loan CommitmentsAgent, and each of which shall be recorded in the Register Register; (5) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the New Commitments, as applicable; (6) the Borrower shall deliver or cause to be delivered any customary and shall be subject to appropriate legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction; and (7) the requirements set forth in Section 5.4(e)9.17 shall have been satisfied, to the extent applicable. Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, shall be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term and the other Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan CommitmentsDocuments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ai) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such ClassCommitments, at the principal amount thereofthereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the such Revolving Credit Loans of such Class will be held by existing Lenders with Revolving Credit Lenders Loans and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (iii) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, and each Loan loan made under a New Revolving Credit Commitment thereunder (a “New Revolving Credit Loan”) shall be deemed, for all purposesapplicable purposes and as of the Increased Amount Date, a Revolving Credit Loans Loan and (iiiii) each New Revolving Loan Lender shall become a Lender as of the Increased Amount Date with respect to the its New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the its New Term Loan Commitment of such Series and the New Term Loans of such Series made by such Lender pursuant thereto.
(d) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the Series of New Term Commitments and New Term Lenders of such Series or the New Revolving Commitments and New Revolving Lenders, as applicable, and (ii) in the case of each notice to any Lender with Revolving Loans, the respective interests in such Lender’s Revolving Loans subject to the assignments contemplated by Section 2.24(b).
(e) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, identical to the Term Loans, if any, outstanding as of the Increased Amount Date; provided, however, that (i) the New Term Maturity Date for any Series shall be on terms as determined by the Borrower and the applicable New Term Lenders and shall be set forth in the applicable Joinder Agreement; provided that (ix) the Weighted Average Life to Maturity of all New Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the Class of Term Loans having the Latest Maturity Date of all Classes of Term Loans and (y) the applicable New Term Loan Maturity Date of each Series shall be no earlier shorter than the Initial Latest Maturity Date of all Classes of Term Loan Maturity DateLoans, (ii) the weighted average life rate of interest applicable to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans each Series shall be determined by the Borrower and the applicable New Term Lenders thereunderand shall be set forth in the applicable Joinder Agreement; provided that, the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on a four-year average life to maturity or the remaining life to maturity), but excluding customary arrangement, commitment, structuring, amendment, underwriting and/or similar fees paid or payable to any arranger or any arranger’s Affiliates with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds of any Series) applicable to any New Term Loans of any Series shall not be more than 0.50% per annum higher than the Effective Yield for Term SOFR Loans or ABR Loans, respectively, corresponding all-in respect of yield (determined on the Initial same basis) applicable to the then outstanding Term Loans, or prior New Term Loansunless the interest rate margin (and the interest rate floor, as if applicable, by more than (i) in with respect to the case of any such New then outstanding Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is increased by an amount equal to the Effective Yield for Term SOFR Loans or ABR Loans difference between the all-in yield with respect of to the New Term Loans of such Series and the all-in yield on the then outstanding Term Loans minus 0.50% per annum, and (iiii) in the case of any such New Term Loans denominated incurred during a Collateral Release Period shall be unsecured and may be subject to substantially the same provisions with respect to a Collateral Reinstatement Event and subsequent Collateral Release Event as the Revolving Loans. As of the Increased Amount Date, the terms and provisions of the New Revolving Loans and New Revolving Commitments shall be such that they shall be identical to the extent applicable to those of the Revolving Loans and the Revolving Commitments as in U.S. Dollars, 0.50%, and (ii) in effect on the case of any Increased Amount Date with respect to such New Term Revolving Loans denominated in a currency other than U.S. Dollars, 0.75%and New Revolving Commitments.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provision provisions of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof)2.24.
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin
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Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent, elect to Agent request the establishment of (i) one or more (x) additional tranches Classes of term loans or increases in Term Loans additional term loans of the same Class of any existing Class of term loans (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or (yii) additional tranches of revolving loans one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments in U.S. Dollars or any Alternative Currency (the “New Additional/Replacement Revolving Credit Commitments” ”, and, together with the New Incremental Term Loan CommitmentsLoans and the Incremental Revolving Credit Commitment Increases, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, by an aggregate amount not in excess of subject to Section 1.10, at the Maximum time that any such Incremental Facilities Amount Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior proviso to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (ab) of the definition of Maximum Incremental Facilities Amountbelow, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments(or, as applicable (and, otherwisein the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition or other Investment, no Event of Default under Section 12.1 11.1 or Section 12.5 11.5) shall exist have occurred and be continuing.
(b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 or like amount in an Alternative Currency, as applicable, (it being understood that such amount may be less than $5,000,000 or like amount in an Alternative Currency, as applicable, if such amount represents all remaining availability under the limit set forth below) (and inunless otherwise agreed by the Borrower and the Administrative Agent, in minimum increments of $1,000,000 or like amount in an Alternative Currency, as applicable, in excess thereof), and, subject to the proviso at the end of this Section 2.14(b), following the First Incremental Agreement Effective Date the aggregate amount of (x) the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to Section 1.10, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of such Test Period, that is no greater than either (x) 4.50:1.00 or (y) if Incurred in connection with an Acquisition or other Investment, the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such Acquisition or other Investment (this clause (B), the “Incremental Ratio Debt Amount” and, together with the Incremental Base Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be Incurred without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in the first part of this Section 2.14(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of Incurrence of such Incremental Term Loans (or substantially concurrently therewith) to either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 5.2(a)(i) or (y) permanently reduce the Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments in accordance with the procedures set forth in Section 5.2(e)(ii) (and any such Incremental Term Loans shall be deemed to have been Incurred pursuant to this proviso), and (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the minimums set forth in the first sentence of this Section 2.14(b) and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments, Extended Revolving Credit Commitments or other Additional/Replacement Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided (and any such Additional/Replacement Revolving Credit Commitments shall be deemed to have been Incurred pursuant to this proviso).
(i) The Incremental Term Loans (A) shall rank equal in right of payment and security with the Initial Term Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis, (B) shall not mature earlier than the Initial Term Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, AHYDO Catch Up Payments, funding discounts, original issue discounts, currency types and denominations and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided that, during the period commencing on the Closing Date and ending on the six-month anniversary of the Closing Date, in the event that the Effective Yield for any Incremental Term Loans denominated in U.S. Dollars (other than Incremental Term Loans (1) Incurred pursuant to clause (B) of Section 2.14(b), (2) established pursuant to the proviso of Section 2.14(b), (3) having a final maturity date that is more than one year after the Initial Term Loan Maturity Date or (4) Incurred in connection with an Acquisition or (5) in an aggregate principal amount equal to or less than the greater of (x) $120,000,000, (y) 75.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such determination (measured as of such date) based upon the Internal Financial Statements most recently available on or prior to such date or (z) Incremental Terms Loans consisting of a customary bridge facility, so long as the Indebtedness outstanding under any such customary bridge facility may be converted into or exchanged for long term debt that satisfies clauses (B) and (C) and any such conversion or exchange is subject only to conditions customary for similar conversions or exchanges (clauses (x)(1) through (5) and (y), collectively, the “MFN Exceptions”)), is greater than the Effective Yield for the Initial Term Loans by more than 0.75%, then the Applicable Margins for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.75% (this proviso, the “MFN Protection”); provided, further, that, notwithstanding the foregoing, Incremental Term Loans in an amount not exceeding the Incremental/Refinancing Maturity Limitation Excluded Amount may be Incurred without regard to clause (B) and/or (C) of this Section 2.14(c)(i); provided, further, that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Eurodollar Rate, for purposes of calculating the applicable increase (if any) in connection the Applicable Margins for the Initial Term Loans in the immediately preceding proviso, the Applicable Margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving pro forma effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable Reference Rate; and (E) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that (x) except with respect to matters contemplated by clauses (B), (C) and (D) above, any differences shall be either, at the option of the Borrower, (1) reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) or (2) consistent market terms and conditions, when taken as a Limited Condition Transactionwhole, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect Incurrence or effectiveness of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5Incremental Facility (as determined by the Borrower in good faith) and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Covenant for the benefit of each Credit Facility.
(ii) the New Loan Commitments The Incremental Revolving Credit Commitment Increase shall be effected pursuant treated the same as the Class of Revolving Credit Commitments being increased (including with respect to one maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and additional upfront or more Joinder Agreements executed similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase (without any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) The Additional/Replacement Revolving Credit Commitments (A) shall rank equal in right of payment and delivered security with the Revolving Credit Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis, (B) shall not mature earlier than the Revolving Credit Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, currency types and denominations, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and the lenders of such commitments, (D) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments, the swingline lender and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to the Swingline Loans and Letters of Credit with respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and such lenders providing (E) may otherwise have terms and conditions different from those of the New Loan CommitmentsRevolving Credit Facility; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and each of which (E) above, any differences shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shalleither, at the election option of the Borrower, (i) reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) or (2) consistent with market terms and conditions when taken as a whole at the time of the incurrence or effectiveness of such Incremental Facility by the Borrower (as determined in good faith) and agreed (y) the documentation governing any Additional/Replacement Revolving Credit Commitments may include any Previously Absent Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to by Lenders providing include such New Term Loan CommitmentsPreviously Absent Covenant for the benefit of each Credit Facility (provided, be designated as (a) a separate series (further, however, that, if the applicable Previously Absent Covenant is a “Series”springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)).
(d) Each notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount, currency types and denominations and proposed terms of New the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. Incremental Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New may be made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effectedprovided, subject to the satisfaction prior written consent of the foregoing terms and conditionsBorrower (not to be unreasonably withheld or delayed), by any existing Lender (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each it being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation to make a New Revolving Credit Commitment (eachportion of any Incremental Term Loan, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders no existing Lender with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under will have any obligation to provide a New portion of any Incremental Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans Increase and (ii) each New Revolving Loan Lender shall become a no existing Lender with respect to the New a Revolving Credit Commitment and all matters relating theretowill have an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, the Swingline Lender and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s or Additional Lender’s providing such New Incremental Revolving Credit Commitment to the extent Increases or Additional/Replacement Revolving Credit Commitments if such consent, if any, consent would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender or Additional Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Commitments in respect of Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable an Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended RevolvinRevolving
Appears in 1 contract
Sources: Incremental Agreement (Grocery Outlet Holding Corp.)
Incremental Facilities. (a) The Borrower may, by written notice to the Administrative Agent, elect to request (i) the establishment of one or more (x) additional tranches of new term loans or increases in Term Loans of any Class loan commitments (the commitments thereto“New Term Commitments”) and/or (ii) prior to the latest Revolving Maturity Date at such time, an increase to the existing Revolving Commitments (any such increase, the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate in a principal amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and (A) not less than $5,000,000 50,000,000 individually (or such lesser amount as (x) may which shall be reasonably approved by the Administrative Agent or (y) that shall constitute the difference between remaining available amount of New Commitments permitted to be established pursuant to and in accordance with this Section 2.24(a) after giving effect to the Maximum Incremental Facilities Amount aggregate amount of New Commitments established pursuant to this Section 2.24(a) after the Closing Date and all such New Loan Commitments obtained on or prior to such date), and integral multiples of $5,000,000 in excess thereof, and (B) not to exceed, for all New Commitments established pursuant to this Section 2.24(a), an aggregate amount (the “Maximum Incremental Amount”) equal to the sum of (1) $750,000,000 plus (2) an amount equal to the Consolidated Cash Flow of the Borrower for the period of four consecutive fiscal quarters most recently ended on or prior to the date on which such New Commitments are established multiplied by 25%; provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amount, no Event of Default Amount shall exist on such Increased Amount Date immediately after giving effect be deemed to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing)not less than $1,250,000,000; provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Maximum Incremental Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected reduced by the aggregate principal amount of any New Commitments established prior to such date and the aggregate principal amount of any Incremental Equivalent Debt incurred prior to such date. Any such New Commitments established pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and this Section 2.24(a) shall be subject to the requirements any restrictions thereon set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower Sections 6.01 and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments6.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent, elect to Agent request the establishment of (i) one or more (x) additional tranches Classes of term loans or increases in Term Loans additional term loans of the same Class of any existing Class of term loans (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or (yii) additional tranches of revolving loans one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments (the “New Additional/Replacement Revolving Credit Commitments,” and, together with the New Incremental Term Loan CommitmentsLoans and the Incremental Revolving Credit Commitment Increases, the “New Loan Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, by an aggregate amount not in excess of subject to Section 1.11, at the Maximum time that any such Incremental Facilities Amount Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior proviso to such date); provided that the aggregate principal amount of all New Revolving Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments incurred in reliance of clause (ab) of the definition of Maximum Incremental Facilities Amountbelow, no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments(or, as applicable (and, otherwisein the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition or similar Investment, no Event of Default under Section 12.1 11.1 or Section 12.5 11.5) shall exist have occurred and be continuing.
(b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (it being understood that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and, subject to the proviso at the end of this Section 2.14(b), the aggregate amount of (x) the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to Section 1.11, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of such Test Period, that is no greater than either (x) 5.25:1.00 or (y) if Incurred in connection with an Acquisition or similar Investment, no greater than the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such Acquisition or similar Investment (this clause (B), the “Incremental Ratio Debt Amount” and, together with the Incremental Base Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be Incurred without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in the first part of this 2.14(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of Incurrence of such Incremental Term Loans (or substantially concurrently therewith) to either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 5.2(a)(i) or (y) permanently reduce the Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments in accordance with the procedures set forth in Section 5.2(e)(ii) (and any such Incremental Term Loans shall be deemed to have been Incurred pursuant to this proviso), and (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the minimums set forth in the first sentence of this 2.14(b) and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments, Extended Revolving Credit Commitments or other Additional/Replacement Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided (and any such Additional/Replacement Revolving Credit Commitments shall be deemed to have been Incurred pursuant to this proviso).
(i) The Incremental Term Loans (A) shall rank equal in right of payment and security with the Initial Term Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis, (B) shall not mature earlier than the Initial Term Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, AHYDO Catch-Up Payments, funding discounts, original issue discounts, currency denomination and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided that, during the period commencing on the Closing Date and ending on first anniversary of the Closing Date, in the event that the Effective Yield for any Incremental Term Loans (other than Incremental Term Loans (x) Incurred pursuant to clause (B) of Section 2.14(b), (y) established pursuant to the proviso of Section 2.14(b) or (z) Incurred in connection with an Acquisition (clauses (x), (y) and (z), collectively, the “MFN Exceptions”)), is greater than the Effective Yield for the Initial Term Loans by more than 0.50%, then the Applicable Margins for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.50% (this proviso, the “MFN Protection”); provided, further, that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Eurodollar Rate, for purposes of calculating the applicable increase (if any) in connection with a Limited Condition Transactionthe Applicable Margins for the Initial Term Loans in the immediately preceding proviso, at the time Applicable Margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving pro forma effect to any increases required pursuant to the immediately succeeding proviso) of such Increased Amount Date Incremental Term Loans less the then applicable Reference Rate; and at (E) may otherwise have terms and conditions different from those of the time a definitive agreement is entered into in Initial Term Loans; provided that (x) except with respect of such Limited Condition Transactionto matters contemplated by clauses (B), there is no Event of Default under Section 12.1 or Section 12.5(C) and (D) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility.
(ii) the New Loan Commitments The Incremental Revolving Credit Commitment Increase shall be effected pursuant treated the same as the Class of Revolving Credit Commitments being increased (including with respect to one maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and additional upfront or more Joinder Agreements executed similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase (without any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) The Additional/Replacement Revolving Credit Commitments (A) shall rank equal in right of payment and delivered security with the Revolving Credit Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis, (B) shall not mature earlier than the Revolving Credit Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, currency denomination, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and the lenders of such commitments; provided that, during the period commencing on the Closing Date and ending on first anniversary of the Closing Date, in the event that the Effective Yield for any Additional/Replacement Revolving Credit Loans (other than Additional/Replacement Revolving Credit Loans under any Additional/Replacement Revolving Credit Commitments (x) incurred pursuant to clause (B) of Section 2.14(b), (y) established pursuant to the proviso of Section 2.14(b) or (z) Incurred in connection with an Acquisition or similar Investment) is greater than the Effective Yield for the Revolving Credit Loans by more than 0.50%, then the Applicable Margins for the Revolving Credit Loans shall be increased to the extent necessary so that the Effective Yield for the Revolving Credit Loans are equal to the Effective Yield for the Additional/Replacement Revolving Credit Loans minus 0.50%; (D) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments, (E) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to the Swingline Loans and Letters of Credit with respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (F) may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and (E) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Credit Commitments may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such lenders providing Previously Absent Financial Maintenance Covenant for the New Loan benefit of each Credit Facility (provided, further, however, that, if the applicable Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Financial Maintenance Covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)).
(d) Each notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount, currency denomination and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. Incremental Term Loans may be made, and each of which shall be recorded in the Register Incremental Revolving Credit Commitment Increases and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Additional/Replacement Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effectedprovided, subject to the satisfaction prior written consent of the foregoing terms and conditionsBorrower (not to be unreasonably withheld or delayed), by any existing Lender (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each it being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation to make a New Revolving Credit Commitment (eachportion of any Incremental Term Loan, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders no existing Lender with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under will have any obligation to provide a New portion of any Incremental Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans Increase and (ii) each New Revolving Loan Lender shall become a no existing Lender with respect to the New a Revolving Credit Commitment and all matters relating theretowill have an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, the Swingline Lender and each the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s or Additional Lender’s providing such New Incremental Revolving Credit Commitment to the extent Increases or Additional/Replacement Revolving Credit Commitments if such consent, if any, consent would be required under Section 14.6(b13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender or Additional Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Commitments in respect of Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable an Incremental Revolving Credit Maturity Date of each Series shall Commitment Increase to be no earlier than the provided by an existing Lender with a Revolving Credit Maturity DateCommitment, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New increase in such Lender’s applicable Revolving Credit Commitments are securedCommitment) under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, are not secured as appropriate, the other Credit Documents, executed by a Lien on any assets of Holdings or its Subsidiaries other than Holdings, the Collateral; providedBorrower, that any New Revolving Credit Loans that are secured by a Lien on each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Administrative Agent. The Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect technical and corresponding such amendments to this Agreement and the other Credit Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provision provisions of this Section 2.14, including, without limitation, any amendments with respect to alternative currency (including (i) in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Incremental Revolvin
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Incremental Facilities. (a) establishment The Borrower may, by written notice to Administrative Agent, elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, Revolving Credit Commitments of any (z) additional tranches of Revolving the “New Term Loan Commitments”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $5,000,000 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments, subject, if applicable, to the proviso to Section 2.14(b); provided that any Lender offered or approached to provide all or a portion of the aggregate principal amount of all New Revolving Credit Loan Commitments shall not exceed $35,000,000 during the term of this Agreementmay elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to no Event of Default (or, where waived by the Lenders providing the New Loan Commitments incurred in reliance of clause (a) of the definition of Maximum Incremental Facilities Amountconnection with an acquisition or investment subject to customary “funds certain” conditions, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date immediately before or after giving effect to such New Loan Commitments, as applicable (andapplicable, otherwiseand subject to Section 1.12, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan #8983238089847286v115 -137- Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin#8983238089847286v115 -138-
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Incremental Facilities. The First Lien Facilities will permit the Borrower from time to time, on one or more occasions, to (a) The Borrower may, by written notice to Administrative Agent, elect to request the establishment of add one or more incremental term loan facilities to the First Lien Facilities (x) additional tranches of term loans or increases in each, an “Incremental Term Loans of any Class (the commitments thereto, the “New Term Loan CommitmentsFacility”), (b) increase commitments under the First Lien Term Facility or any Incremental Term Facility (each, an “Incremental Term Increase”) (c) add one or more incremental revolving credit facilities to the First Lien Facilities (each, an “Incremental Revolving Facility”) and/or (yd) additional tranches of revolving loans or increases in increase commitments under the Revolving Credit Commitments of any Class Facility (the each such increase, an “New Incremental Revolving Credit CommitmentsIncrease” and, together with the New any Incremental Term Loan CommitmentsFacility, any Incremental Term Increase and any Incremental Revolving Facility, the “New Loan CommitmentsIncremental Facilities”), by an aggregate amount not in excess of ) on terms and conditions the Maximum Incremental Facilities Amount same as those set forth in the aggregate and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date); provided that the aggregate principal amount of all New Revolving Precedent Credit Commitments shall not exceed $35,000,000 during the term of this Agreement. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i1) with respect loans may be incurred under the Available Incremental Amount (as defined below) without giving effect to New Loan Commitments any amount incurred in reliance of clause substantially simultaneously or contemporaneously therewith under the Revolving Facility) and (a2) Section 2.20(b)(i)(e) of the definition Precedent Credit Agreement shall be removed (it being agreed that the corresponding provisions that are applicable to other forms of Maximum Incremental Facilities Amount, no Event of Default indebtedness under the Precedent Credit Agreement shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments, as applicable (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and also be continuingremoved); provided, further, that in connection with a Limited Condition Transaction, at the time of such Increased Amount Date and at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. Any New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars and any other currency at the election of the Borrower and agreed to by the Administrative Agent in its sole discretion. No Lender shall be required to provide any New Loan Commitments.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Initial Term Loans, (iii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iv) if the New Term Loans and New Term Loan Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Term Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured by the Collateral on a junior lien basis, to the Second Lien Intercreditor Agreement.
(e) The pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any floating rate New Term Loans that are pari passu in right of payment and secured by the Collateral on a pari passu basis with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, by more than (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%, the Applicable Margin for Term SOFR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal to the Effective Yield for Term SOFR Loans or ABR Loans in respect of the New Term Loans minus (i) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in the case of any such New Term Loans denominated in a currency other than U.S. Dollars, 0.75%.
(f) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be on terms as determined by the Borrower and set forth in the Joinder Agreement; provided, that (i) any applicable New Revolving Loan Repayment Date of each Series shall be no earlier than the Revolving Credit Maturity Date and the applicable Incremental Revolving Credit Maturity Date of each Series shall be no earlier than the Revolving Credit Maturity Date, (ii) no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (iii) if the New Revolving Credit Commitments are secured, are not secured by a Lien on any assets of Holdings or its Subsidiaries other than the Collateral; provided, that any New Revolving Credit Loans that are secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured, shall be established as a separate facility and be subject, in the case of Incremental Loans secured on a junior lien basis, to the Second Lien Intercreditor Agreement.
(g) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14, including, without limitation, any amendments with respect to alternative currency in connection with the establishment of any New Revolving Credit Commitments denominated in a currency other than Dollars, any amendments that the Borrower determine are necessary in connection with a New Term Loan Commitment that is an increase to Term Loans of any Class to provide that such New Term Loans and New Term Loan Commitments are fungible for U.S. federal income tax purposes (it being understood that, if necessary to consummate such increase in such Class of Term Loans which is intended to be fungible for U.S. federal income tax purposes, the interest rate margins and rate floors on the existing Class of Term Loans may be automatically increased, the amortization schedule may be adjusted and any call protection, covenant or other provision may be made more favorable to the applicable existing Lenders without the consent of such existing Lenders; it being understood and agreed by the parties hereto that the Administrative Agent will not be making, and shall not be responsible for, any determinations as to the fungibility of any New Term Loans or New Term Loan Commitments for U.S. federal income tax purposes, and the Administrative Agent is hereby authorized to rely exclusively on any such determinations made by the Borrower in effectuating such adjustments to an existing Class of Term Loans in respect thereof).
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms substantially similar to the Existing Term Loan Class (other than for terms related to interest and fees applicable only to periods after the Latest Term Loan Maturity Date of the Term Loans that are not being extended) to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments (if any) reflected in the Joinder Agreement with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(h) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second to last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms substantially similar to the Existing Revolving Credit Class (other than for terms related to interest and fees applicable only to periods after the Revolving Credit Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, that (x) the scheduled final maturity date shall be extended and (y)
(A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolvin:
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Sources: Commitment Letter