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. (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 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); provided , which may be incurred in Dollars, Euros or Pounds Sterling. 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 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 do not exceed the Maximum Incremental Facilities Amount, which certificate shall become effective be in reasonable detail and shall provide the calculations and basis therefor and, subject to reclassification as of set forth in Section 10.1, classify such Indebtedness as being incurred underpursuant to the applicable Increased Amount Date; provided that (iclause(i) with respect to New Loan Commitments incurred in reliance of or clause (aiis) 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 RevolvinMaximum
Appears in 2 contracts
Sources: First Lien Credit Agreement (BrightSpring Health Services, Inc.), First Lien Credit Agreement (BrightSpring Health Services, 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 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 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); provided , which may be incurred in Dollars, Euros or Pounds Sterling. 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 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 do not exceed the Maximum Incremental Facilities Amount, which certificate shall become effective be in reasonable detail and shall provide the calculations and basis therefor and, subject to reclassification as of the applicable Increased Amount Date; provided that set forth in Section 10.1, classify such Indebtedness as being incurred under clause (i) with respect to New Loan Commitments incurred in reliance of or clause (aii) of the definition of Maximum Incremental Facilities Amount. 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 New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, on each applicable Increased Amount Date (subject to Section 1.12), such New Loan Commitments shall be subject to (i) no Event of Default (except in connection with an acquisition or investment (including any Permitted Acquisition or Investment), 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, shall be subject to the satisfaction of the foregoing following 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 new Revolving Loan Lenders shall purchase from each of the Lenders with Revolving 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 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 and each the Letter of Credit Issuer 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, shall be subject to the satisfaction of the foregoing and following 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) 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 (of the then existing Initial Term Loans as calculated without giving effect to prepayments) of any prepayments made in connection with 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, subject to clauses (i) and (ii) above, amortization schedule applicable to any Incremental New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided thatthat only during the period commencing on the Closing Date and ending on the thirty month anniversary of the Closing Date, with if the Effective Yield for LIBOR Loans or ABR Loans in respect to any floating rate of such New Term Loans consisting of 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 (other than any New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment) 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 of like currency 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% (the terms of this proviso to 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, 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 Section 3.12 to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all 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 3.12, without giving effect to changes thereto on an earlier maturity date with respect to 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 Borrowers), 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 Amendment and to the contrary in this Section 2.14 or otherwiseextent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no Extended Term Loans may consent shall 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 required by the Administrative Agent (who shall provide a copy of such notice to each or any of the Lenders if such Permitted Other Provision is also added for the benefit 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 any corresponding Loans remaining outstanding 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 issuance 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 Revolvinincur
Appears in 2 contracts
Sources: First Lien Credit Agreement (BrightSpring Health Services, Inc.), First Lien Credit Agreement (BrightSpring Health Services, 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 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 101 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” 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 fiscal quarter, 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 related revolving credit loans thereundercash 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, “Existing Revolving Credit Loans”; each Existing 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 Facility and (2) no amortization 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
(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 (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of 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. 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. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender under such Term Loan Tranche will participate proportionately in each then outstanding Borrowing of Term Loans under the Term Loan Tranche.
(i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with all the other Original Facilities, not be Guaranteed by any Person that is not a Borrower or Guarantor under each of the other Facilities, and be unsecured or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Credit Commitments and Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental
(2g) no Extended RevolvinTo the extent any New Revolving Facility or New Term Facility shall be denominated in an Alternative Currency, this Agreeme
Appears in 1 contract
Sources: Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Incremental Facilities. (a) The Borrower mayAt any time during the period from and after the Closing Date through, 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 theretobut excluding, the “New Term Loan Commitments”)date that is the 4 year anniversary of the Closing Date, and/or Borrowers may request that (ybut subject to the Lender's approval and subject to the conditions set forth in clause (b) additional tranches of revolving loans or increases in Revolving Credit below) the 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 all such increases of the Revolver Commitments 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 Revolver Amount and all not to exceed the Available Increase Amount (each such New Loan increase, an "Increase"). Lender shall increase its Revolver Commitments obtained on or prior (it being understood that Lender has no obligation 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 (iincrease its Revolver Commitments) 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, proposed Increase at the time of such Increased Amount Date interest margin proposed by Borrowers 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 acceptable to Lender. Any Increase shall be effected in an amount of at least $10,000,000 and integral multiples of $5,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to one or this Section 2.14 on 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 than 2 occasions in the Register aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall be subject the aggregate amount of the Increases 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 Revolver 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 Commitmentsexceed $40,000,000.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction Each of the foregoing terms following shall be conditions precedent to any Increase of the Revolver Commitments and conditions, the Maximum Revolver Amount in connection therewith:
(ai) with respect to New Revolving Credit Commitments, each of the Lenders conditions precedent set forth in Section 3.2 are satisfied,
(ii) in connection 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 purchasesany Increase, the Revolving Credit Loans of such Class Loan Parties and their Subsidiaries will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class not own or acquire any Margin Stock,
(iii) Borrowers have delivered to Lender updated pro forma Projections (after giving effect to the addition applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (on a month-by-month basis) immediately following the proposed date of such New Revolving Credit Commitments the applicable Increase (calculated as if a Covenant Testing Period was in effect during the entire twelve month period), and
(iv) Borrowers shall have reached agreement with Lender agreeing 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 increased Revolver Commitments with respect to the New interest margins applicable to Revolving Credit Commitment Loans to be made pursuant to the increased Revolver Commitments (which interest margins may be with respect to Revolving Loans made pursuant to the increased Revolver Commitments, higher than or equal to the interest margins applicable to Revolving Loans set forth in this Agreement immediately prior to the date of the increased Revolver Commitments (the date of the effectiveness of the increased Revolver Commitments and all matters relating thereto; provided that the Administrative Agent Maximum Revolver Amount, the "Increase Date")) and each Letter of Credit Issuer shall have consented (not communicated the amount of such interest margins 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 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 effective, subject Document 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 deemed, unless the weighted average life context otherwise requires, 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 include Revolving 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 made 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 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 increased Revolver 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 Maximum Revolver Amount 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 (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 (Northwest Pipe Co)
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, 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 A Borrower may, by written notice by the Parent Borrower to the Administrative Agent, elect to request request, from time to time, on one or more occasions, (i) the establishment of one or more new term loan commitments (x) additional tranches by way of adding one or more new term loan facilities and/or increasing the term loans or increases in Term Loans of any Class under an existing term loan facility prior to its maturity date) (the commitments thereto, the “New Term Loan Commitments”), ) and/or (yii) additional tranches the establishment of one or more new revolving loans commitments (by way of adding one or increases more revolving credit facilities and/or increasing any existing Class of Revolving Commitments prior to their applicable Maturity Date) denominated in Revolving Credit Commitments of any Class dollars or an Alternative Currency (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 agreed by the Persons providing the same, in a principal amount (A) not less than the applicable Extension Amendment. Notwithstanding anything Dollar Equivalent of $50,000,000 individually (or such lesser amount which shall be reasonably approved by the Administrative Agent or that shall constitute the remaining available amount of New Commitments permitted to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior established pursuant to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except and in accordance with this Section 2.24(a)), and integral multiples of the second Dollar Equivalent of $5,000,000 in excess thereof, and (B) not to last sentence exceed, for all New Commitments established pursuant to this Section 2.24(a) after the Eighth Amendment Effective Date (other than amounts incurred pursuant to the Ratio-Based Prong), an aggregate amount equal to the sum of the Dollar Equivalent of (1) the greatest of (x) $2,710,000,000, (y) 10.50% of Total Assets and (z) 85.0% of Consolidated Cash Flow for the most recently ended Test Period (this clause (1), the “Free and Clear Amount”), plus (2) amounts available under Section 5.1(a6.01(b)(xxii) at such time (it being understood that usage of such amounts shall reduce availability under such basket on a dollar-for-dollar basis) (this clause (2). No Lender shall have any obligation to agree to have any of its Term Loans , the “Reallocated Amount”), plus (3) the aggregate amount 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 voluntary prepayment, redemption, repurchase or other retirement of Term Loans and/or any permanent reductions of the commitments under any Revolving Facility (including loan buybacks and open market purchases permitted under this Agreement and the other Loan Documents or termination from the Existing “yank-a-bank” provisions, to the extent of the actual purchase price paid in cash) and/or the amount of any permanent prepayment of Indebtedness secured on a pari passu basis with the Guaranteed Obligations (this clause (3), the “Prepayment Amount”), plus (4) in the case of New Commitments that serve to effectively refinance, replace and/or extend the maturity of then-existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time Loans, Revolving Commitments and/or Revolving Loans, an amount equal to time request that all or a the portion of the such Term Loans, Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any Revolving Loans to be replaced with such New Revolving Credit CommitmentsCommitments (this clause (4), each existing at the time of such request (each“Replacement Amount” and, an “Existing Revolving Credit Commitment” the Replacement Amount, collectively with the Free and any related revolving credit loans thereunderClear Amount, “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 Reallocated Amount 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 CommitmentsPrepayment Amount, the Borrower shall provide a notice “Non-Ratio Based Prong”), in the case of the Prepayment Amount and the Replacement Amount, 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 extent not funded or effected with any long term Indebtedness (other than for terms related revolving Indebtedness); provided that, any Borrower shall also have the right to interest obtain additional New Commitments without regard to the Non-Ratio Based Prong in an unlimited amount (the “Ratio-Based Prong” and, the Ratio-Based Prong, together with the Non-Ratio Based Prong, the “Maximum Incremental Amount”) so long as, in the case of this Ratio-Based Prong, on a pro forma basis after giving effect to the incurrence of such New Commitments incurred pursuant to this Section 2.24 or any Indebtedness incurred pursuant to Section 6.01(b)(xxiii), and fees applicable only to periods after the Revolving Credit Maturity Date application of the Existing proceeds thereof (without netting the cash proceeds thereof, and, in the case of any New Commitments in the form of New Revolving Credit Class Commitments, Revolving Commitments and/or Revolving Loans, or US-DOCS\155682452.9 revolving facilities or revolving commitments pursuant to Section 6.01(b)(xxiii) then being established, assuming a full drawing thereunder), (1) in the US-DOCS\155682452.9 case of Indebtedness secured by a Lien on the Collateral that are ranks pari passu with the Lien securing the Guaranteed Obligations, the Consolidated First Lien Net Leverage Ratio would not being extended) exceed, on a pro forma basis, 1.25:1.00 (or, to be agreed between the Borrower extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure, the Consolidated First Lien Net Leverage Ratio (on a pro forma basis for such transaction and the Lender providing Extended Revolving Credit Commitments; provided, however, that incurrence of such Indebtedness) would not exceed the greater of (xA) 1.25:1.00 and (B) the scheduled final maturity date shall be extended Consolidated First Lien Net Leverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure), (2) in the case of Indebtedness secured by a Lien on the Collateral that ranks junior to the Lien securing the Guaranteed Obligations, the Consolidated Secured Net Leverage Ratio would not exceed, on a pro forma basis, 1.75:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure, the Consolidated Secured Net Leverage Ratio (on a pro forma basis for such transaction and the incurrence of such Indebtedness) would not exceed the greater of (A) 1.75:1.00 and (yB) the Consolidated Secured Net Leverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”)
, disposition or capital expenditure) and (3) in the case of unsecured Indebtedness or Indebtedness secured only by a Lien on assets that do not constitute Collateral either (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 Consolidated Total Net Leverage Ratio would not exceed, on a pro forma basis, 4.00:1.00 (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 caseor, 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 incurred in connection with an acquisition, Investment (including a permanent repayment and termination prospective Investment as contemplated by the definition of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made “Specified Transaction”), disposition or capital expenditure, the Consolidated Total Net Leverage Ratio (on a pro rata forma basis with all other Original Revolving Credit Commitments for such transaction and the incurrence of such Indebtedness) would not exceed the greater of
(I) 4.00:1.00 and (2II) the Consolidated Total Net Leverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure) or (B) the Fixed Charge Coverage Ratio would be no Extended Revolvinless than, on a pro forma basis, 2.00:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure, the Fixed Charge Coverage Ratio (on a pro forma basis for such transaction and the incurrence of such Indebtedness) would be no less than the lesser of (I) 2.00:1.00 and
(II) the Fixed Charge Coverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure), it being understood and agreed that, unless the Parent Borrower otherwise elects, availability under the Ratio-Based Prong shall be deemed used prior to availability under the Free and Clear Amount, the Reallocated Amount, the Prepayment Amount or the Replacement Amount to the maximum extent permitted thereunder. 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.
Appears in 1 contract
Sources: Thirteenth Amendment to Second Amended and Restated Credit Agreement (NRG Energy, Inc.)
Incremental Facilities. (a) The Borrower may, from time to time after the Closing Date, upon notice by written notice the Borrower to the Person appointed by the Borrower to arrange an incremental Facility (such Person (who may be (i) the Administrative AgentAgent or (ii) any other Person appointed by the Borrower), elect 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) (each, 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 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 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 (A) $55,000,000 and (B) 100% of Four Quarter Consolidated EBITDA (the “Cash-Capped Incremental Facility”), (y) shall constitute an unlimited amount (the difference between “Ratio-Based Incremental Facility”) so long as the Maximum Incremental Facilities Amount Leverage Requirement is satisfied and all such New Loan Commitments obtained on or prior (z) an amount equal 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 (A) all voluntary prepayments of Term Loans made pursuant to New Loan Commitments incurred in reliance Section 2.05(a) and (B) all repurchases and/or cancellations of clause (a) of Term Loans made pursuant to 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) terms hereof and (ii) the New Loan Commitments shall be effected voluntary prepayments of Revolving Credit Loans made pursuant to one or more Joinder Agreements executed and delivered by Section 2.05(a) (including for the Borrower and Administrative Agent and such lenders providing the avoidance of doubt New Loan CommitmentsRevolving Loans), 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 shallextent accompanied by a corresponding, 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 permanent reduction in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect Commitments pursuant 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 (A2.06(a), in each case, to the extent 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 to the extent secured (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 applicable Extension Amendment. Notwithstanding anything case of any New Loan Commitments denominated in a foreign currency, the equivalent of such amount in such currency, 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 this Section 2.14 and New Incremental Notes issued pursuant to Section 2.15:
(A) At the Borrower’s option, the Borrower shall be deemed to have used amounts under the Ratio-Based Incremental Facility (to the contrary extent compliant therewith), prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility, and the Borrower shall be deemed to have used the Prepayment-Based Incremental Facility prior to utilization of the Cash-Capped Incremental Facility,
(B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction or series of related transactions by, at the Borrower’s option, by first calculating the incurrence under the Ratio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility, the Prepayment-Based Incremental Facility or any amounts substantially concurrently incurred under Section 7.01 (other than any Ratio Debt incurred pursuant to Section 7.01 (including, without limitation, pursuant to clause (o) thereof)) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash-Capped Incremental Facility) and then calculating the incurrence under the Cash-Capped Incremental Facility,
(C) Any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility shall be automatically divided (if applicable) and redesignated as having been incurred under the Ratio-Based Incremental Facility in the event that subsequent to the original incurrence, the Borrower would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility (which, for the avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility and/or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness), and
(D) solely for the purpose of calculating 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 Senior Secured Net Leverage Ratio or Consolidated Total Net Leverage Ratio shall be excluded. The Borrower may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as the Borrower may deem appropriate.
(b) For the avoidance of doubt, the Borrower will not be obligated to approach any Lender to participate in any New Loan Commitments. 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 Borrower may also invite additional Eligible Assignees reasonably satisfactory to the Incremental Arranger and, solely in connection with a Revolving Credit Commitment Increase or New Revolving Facility, with the consent of the Administrative Agent and each L/C Issuer (to the extent the consent of any of the foregoing would be required to assign Revolving Credit Loans to such Eligible Assignee, which consent 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 that, with respect to any New Loan Commitments, the Borrower must provide to the Administrative Agent the documentation providing for such New Loan Commitments and prior written notice of such joinder documentation.
(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 Loan Facility or New Revolving Facility is added in accordance with this Section 2.14, no Extended the Incremental Arranger and the Borrower 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 Borrower and the Incremental Arranger (and the Lenders hereby authorize 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. 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 a writing (which may be optionally prepaid prior executed and delivered by the Borrower 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 date on which the Existing additional Loans under such Term Loan Class from which they were converted is repaid in fullTranche being made on such date, except such aggregate amount to be applied to increase such installments ratably in accordance with the second amounts in effect immediately prior to last sentence 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 5.1(a). No Lender 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition or investment) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the final maturity shall have 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 (3) the terms and documentation applicable to the Revolving Credit Facility shall apply, (B) in the case of any obligation New Revolving Facility, (1) the final maturity shall be no earlier than the Maturity Date applicable to agree the Revolving Credit Facility and (2) no amortization or mandatory commitment reduction prior to have the Maturity Date applicable to the Revolving Credit Facility shall be required, (C) in the case of any increase of its a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans, Specified Refinancing Term Loans of any Existing Term Loan Class converted into or Extended 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 Extension Request. Any other outstanding Term Loans, New Term Loans, Specified Refinancing Term Loans or Extended Term Loans, as applicable; provided, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of any Extension Series shall constitute a separate Class of all then outstanding 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 Classand, 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 Extendable Bridge Loans, the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity 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 then outstanding Term Loans, “Extended Revolving Credit Loans”and (D) and to provide for other terms consistent with this Section 2.14(h)(ii). In order to establish in the case of any Extended Revolving Credit CommitmentsNew Term Facility, 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 in the Revolving Credit case of Extendable Bridge Loans, such New Term Facility shall have a final maturity no earlier than the then Latest Maturity Date of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower any Term Loan Tranche and the Lender providing Extended Weighted Average Life to Maturity of such New Term Facility shall be no shorter than that of any existing Term Loan Tranche; (iii) except with respect to All-in Yield and as set forth in subclause (D) above with respect to final maturity and Weighted Average Life to Maturity, any such New Term Facility or New Revolving Credit CommitmentsFacility shall have terms reasonably satisfactory to the Incremental Arranger; provided, however, that (x) to the scheduled final maturity date extent such terms (excluding pricing, and optional prepayment or redemption terms) are more favorable to the existing Lenders than comparable terms existing in the Loan Documents, such terms shall be extended incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) by an amendment to this Agreement (which may be accomplished without further Lender voting requirements) (provided that, for the avoidance of doubt, at the option of the Borrower, the Borrower may, but shall not be required to, increase the Applicable Rate or amount of amortization 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) and (y)
) otherwise, may be incorporated if reasonably satisfactory to the Borrower, the Incremental Arranger and the Administrative Agent; and (Aiv) to the interest margins 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 Extended Borrower and each material Subsidiary Guarantor that is organized in a jurisdiction for which counsel to the Administrative Agent advises that such deliveries are reasonably necessary to preserve the Collateral in such jurisdiction (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion). 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 Borrower.
(e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Commitments may Lender immediately prior to such increase will automatically and without further act be higher or lower than deemed to have assigned to each Lender providing a portion of the interest margins for increase to the applicable Existing Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the “Specified Existing percentage of the aggregate outstanding participations hereunder in L/C Obligations will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments”) and/or (B) additional fees), premiums or AHYDO payments may which prepayment shall be payable accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. 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 Lenders providing such Extended Revolving Credit Commitments in addition transactions effected pursuant to or in lieu of any increased margins contemplated the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the preceding clause (A), in each case, applicable Lenders participating therein pursuant to the extent provided procedures set forth in Sections 2.01 and 2.02 and on the applicable Extension Amendment. Notwithstanding date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in this Section 2.14 or otherwiseSections 2.01 and 2.02, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of such new Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments added to (and (2form part of) no Extended Revolvineach Borrowi
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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 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
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more (x) additional tranches term loans, which may be of the same Class as any then-existing Term B Loans (a “Term B Increase”) or a separate Class of Term B Loans (the commitments for additional term loans of the same Class or increases in a separate Class, collectively, the “Incremental Term B Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Increase”) or a separate Class of Term C Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term C Commitments”) and/or (z) revolving credit commitments, 100 which may be of the same Class as any then-existing Revolving Commitments (the commitments thereto, the “Additional Revolving Commitments”) or a separate Class of Revolving Commitments (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 Additional Revolving Commitments, the “New Loan Incremental Revolving Commitments”; together with the Incremental Term B Commitments and the Incremental Term C Commitments, the “Incremental Commitments”), by an aggregate principal amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(y)), not in excess of the Maximum Incremental Facilities Amount in at the aggregate time of incurrence thereof 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 at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all such New Loan Commitments obtained on or prior to such date)a portion of the Incremental Commitments; provided that any Lender offered or approached to provide all or a portion of the aggregate principal amount of all New Revolving Credit Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment, and the Borrower shall not exceed $35,000,000 during the term of this Agreementhave no obligation to approach any existing Lender to provide any Incremental Commitment. In each case, such New Loan Incremental Commitments shall become effective as of the applicable Increased Amount Date; provided that that, (i) with respect to New Loan Commitments incurred (x) other than as described in reliance of the immediately succeeding clause (a) of the definition of Maximum Incremental Facilities Amounty), 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 Incremental Commitments and the borrowing of any Incremental Loans thereunder or (and, otherwise, no Event of Default under Section 12.1 or Section 12.5 shall exist and be continuing); provided, further, that y) if such Incremental Commitment is being provided in connection with a Limited Condition Transaction, at the time then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and at (B) such other provisions of Section 11 as may otherwise be required by the time a definitive agreement is entered into in respect Lenders providing the applicable Incremental Commitment immediately before or immediately after giving effect to such Incremental Commitment and the borrowing of such Limited Condition Transactionany Incremental Loans thereunder, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Commitments, on an Increased Amount Date, there shall be no requirement for the New Loan Borrower to bring down the representations and warranties under the Credit Documents unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Commitments (provided that, in the case of Incremental Loans or Incremental Commitments used to finance a Permitted Acquisition or other acquisition constituting a permitted Investment, only the Specified Representations (conformed as necessary for such acquisition) shall be required to be true and correct in all material respects if requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Commitments), (iii) the Incremental Commitments shall be effected pursuant to one or more Joinder Agreements Incremental Amendments 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(e), and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the Incremental Commitments, as applicable. Any New No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any Incremental Term B 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 (ax) a separate series of Term B Loans or (y) in the case of a Term B Increase, a part of the series of existing Term B Loans subject to such increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Increase, a part of the series of existing Term C Loans subject to such increase, and (c) any Incremental Revolving Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Commitments or (y) in the case of a Additional Revolving Commitment, a part of the series of existing Revolving Commitments subject to such increase (such 101 new or existing series of Term B Loans, Term C Loans or Revolving Commitments, each, 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 Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the foregoing following terms and conditions, (ax) with respect to New Additional Revolving Credit Commitments, each of the Revolving Lenders with an existing Revolving Credit Commitment of the Class being increased by such Additional Revolving Commitments shall automatically and without further act be deemed to have assigned to each Revolving Lender with a Additional Revolving Commitment of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a an “New Additional Revolving Loan Lender”) ), and each of the New such Additional Revolving Loan Lenders shall purchase from automatically and without further act be deemed to have purchased and assumed, (i) a portion of such Revolving Lender’s participations hereunder in outstanding Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the percentage of the Lenders with aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Lender holding Revolving Loans (including each such Additional Revolving Lender), as applicable, will equal the percentage of the aggregate Total Revolving Commitments of such Classall Revolving Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the Revolving Credit Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchasesassumptions, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders under such Class and New Additional Revolving Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Additional Revolving Credit Commitments to such existing Revolving Commitments (the Revolving Credit CommitmentsAdministrative 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 this clause (x)), and (by) with respect to New any Incremental Revolving Credit Commitments, (i) each New Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, and each Loan loan made under a an Additional Revolving Commitment (each, an “Additional Revolving Loan”) and each loan made under an New Revolving Credit Commitment (each, a “New Revolving Credit Loan” and, together with the Additional Revolving Loans, the “Incremental Revolving Loans”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each Additional Revolving Lender and each Revolving Lender with a New Revolving Loan Lender Commitment (each, a “New Revolving Lender” and, together with the Additional Revolving Lenders, the “Incremental Revolving Lenders”) shall become a Revolving Lender with respect to the New applicable Incremental 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 (x) on which any New Incremental Term Loan B Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and conditions, (i) each Lender with an Incremental Term B Commitment (each, an “Incremental Term B Lender”) of any Series shall make a term loan to the Borrower (each, an “Incremental Term B Loan”) in an amount equal to its Incremental Term B Commitment of such Series, and (ii) each Incremental Term B Lender of any Series shall become a Lender hereunder with respect to the Incremental Term B Commitment of such Series and the Incremental Term B Loans of such Series made pursuant thereto and (y) on which any Incremental Term C Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New an Incremental Term Loan C Commitment (each, a an “New Incremental Term Loan C Lender”) of any Series shall make a Loan term letter of credit loan to the Borrower (a each, an “New Incremental Term C Loan” and, together with the New Incremental Term B Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its New Incremental Term Loan C Commitment of such Series, and (ii) each New Incremental Term Loan C Lender of any 102 Series shall become a Lender hereunder with respect to the New Incremental Term Loan C Commitment of such Series and the New Incremental Term C Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans.
(d) The terms and provisions of any Incremental Term B Commitments and any Incremental Term C Commitments and the New respective related Incremental Term B Loans and New Incremental Term Loan C Loans, in each case effected pursuant to a Term B Increase or Term C Increase shall be substantially identical to the terms and provisions applicable to the Class of Term B Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, end of term, amendment, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term B Commitments and any Incremental Term C Commitments and the respective related Incremental Term B Loans and Incremental Term C Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term B Commitments or Incremental Term C Commitments may be paid in connection with such Incremental Term B Commitments or Incremental Term C Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related Term L/C Commitments, any excess cash collateral funded by such Incremental Term C Loans shall be withdrawn from the applicable funded term loan letter of credit cash collateral account. The terms and provisions of any Incremental Term B Commitments and any Incremental Term C Commitments and the respective related Incremental Term B Loans and Incremental Term C Loans of any Series not effected pursuant to a Term B Increase or Term C Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower and set forth in the Joinder AgreementBorrower; provided that that:
(i) (x) the applicable New Incremental Term Loan B 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 B Maturity Date and (y) the applicable Incremental Revolving Credit Term C Maturity Date of each Series shall be no earlier than the Revolving Credit Initial Term C 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 requirements 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).
foregoing clause (i) The Borrower may at shall not apply to any time, and from time customary bridge facility so long as the Indebtedness into which such customary bridge facility is 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 complies 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.requirements;
(ii) The Borrower may at any time and from time the Weighted Average Life 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 Maturity of the applicable Class Incremental Term B Loans of Existing Revolving Credit Commitments which such request each Series shall be offered equally no shorter than the Weighted Average Life to all such Lenders) setting forth the proposed terms Maturity of the Extended Revolving Credit Commitments Initial Term B Loans (without giving effect 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 any previous amortization payments or prepayments of the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower and the Lender providing Extended Revolving Credit CommitmentsInitial Term B Loans); provided, howeverthe requirements of the foregoing clause (ii) shall not apply to any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements;
(iii) the Incremental Term B Loans, that Incremental Term B Commitments, Incremental Term C Loans and Incremental Term C Commitments (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 participate on a pro rata basis, greater than pro rata basis or lower less 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 pro rata basis in addition to or in lieu any voluntary prepayment 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 Class of Term B Loans hereunder 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 may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term B Loans hereunder; provided that if such Incremental Term B Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to security with all other Original Revolving Credit Commitments the First Lien Obligations, such Incremental Term B Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term B Loans and Term C Loans hereunder (2) no Extended Revolvinexcept in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), 103
Appears in 1 contract
Sources: Credit Agreement (Talen Energy Corp)
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 latest Revolving Credit Maturity Date at such time, 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 (1) in each case to effect the incurrence of secured Indebtedness permitted to be incurred pursuant to Section 6.01(p) in an aggregate amount not in excess of (and not in duplication of) the Maximum Incremental Facilities Amount amount of secured Indebtedness permitted to be incurred pursuant to Section 6.01(p) in the aggregate and 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) such lesser amount that shall constitute the difference between the Maximum Incremental Facilities Amount amount of secured Indebtedness permitted to be incurred pursuant to Section 6.01(p) as of such date and (A) the amount of secured Indebtedness incurred pursuant to Section 6.01(p) after the Third Restatement Date and prior to such date plus (B) 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 2.25 shall correspondingly reduce the amount of Indebtedness permitted to be incurred pursuant to Section 6.01(p), and vice versa) plus (2) in the case of New Revolving Credit Commitments only, in an amount not in excess of (and not in duplication of the amount of New Revolving Credit Commitments under clause (1), but in addition thereto) $1,000,000,000 less the aggregate amount of Revolving Credit Commitments then outstanding (or such lesser amount which shall be reasonably approved by the Administrative Agent). 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 ten 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 9.04(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 immediately 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 Loans, otherwise, no Event each of Default under the conditions set forth in Section 12.1 or 4.01 shall be satisfied; (iii) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Sections 6.13 and 6.14 as of the last day of the most recently ended fiscal quarter for which financial statements are required to be delivered pursuant to Section 12.5 shall exist 5.04(a) and 5.04(b) immediately after giving effect to such New Loan Commitments and any Investment to be continuing); provided, further, that 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 Administrative Agent and Borrower, the Lenders providing such lenders providing the New Loan CommitmentsCommitments and the Administrative Agent, and each of which shall be recorded in the Register Register; (v) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the New Loan Commitments, as applicable; (vi) 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 (vii) the requirements set forth in Section 5.4(e)9.19 shall have been satisfied. 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 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 2.25.
(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 B 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 Class of Term B Loans having the Latest Maturity Date of all Classes of Term B 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 Date, B Loans and (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 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 Loans and New Revolving Credit Commitments shall be such that they shall be identical to those of the Revolving Credit Loans and the related Revolving Credit Commitments as in effect on the Increased Amount Date with respect to such New Revolving Loans and 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 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)2.25.
(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 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 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 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) 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 (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 Subsidiary 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.
(b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and 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 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) (including, without duplication, the amount of any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness Incurred under Section 10.1(u)(ii)) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (the “Incremental Limit”) (A) the Incremental Base Amount, plus (B) the Reallocated General Debt Basket Amount (provided that (X) after giving pro forma effect to such Incremental Facility then being Incurred under the Reallocated General Debt Basket Amount (and any Specified Transaction (including any prepayment, redemption or buyback of Indebtedness) or Specified Restructuring in connection therewith) (and assuming, solely for purposes of determining the Consolidated Senior Out First Lien Debt to Consolidated EBITDA Ratio under this proviso, that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding or being Incurred under this clause (B) are fully drawn), the Consolidated Senior Out 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 such Incremental Facility shall be no greater than 3.75:1.00 and (Y) any Incremental Facility incurred pursuant to this clause (B) may, without limitation, constitute First Out Indebtedness, Senior Out Indebtedness or Third Out Indebtedness (as determined by the Borrower in its sole discretion (subject to the foregoing clause (X) of this proviso) and set forth in the applicable Incremental Agreement)), plus (C) the Reallocated Specified Transaction Tax Amount Basket (any Incremental Facility incurred pursuant to this clause (C) may, without limitation, constitute First Out Indebtedness, Second Out Indebtedness or Third Out Indebtedness (as determined by the Borrower in its sole discretion and set forth in the applicable Incremental Agreement)), plus (D) the Reallocated Specified Repurchase Debt Basket (provided that (x) the net proceeds of any Incremental Facility incurred pursuant to this clause (D) are used solely to consummate a Specified Repurchase or Exchange of Existing Indebtedness and (y) any Incremental Facility incurred pursuant to this clause (D) shall solely constitute a Third Out Obligation).
(i) The Incremental Term Loans (A) shall (x) be secured only by all or a portion of the Collateral securing the Obligations on an equal priority basis with the Obligations with respect to Lien priority, (y) not be guaranteed by any Subsidiary that is not a Credit Party and (z) to the extent consisting of a First Lien Obligation, constitute either a First Out Obligation, Second Out Obligation or Third Out Obligation (as selected by the Borrower in its sole discretion, subject to the limitations set forth in the Incremental Limit), (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 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, prepayment terms and premiums and other economic terms for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; (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 (at the Direction of the Required Lenders), (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 its 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; provided, further, that, (1) for purposes of mandatory prepayments, any such Incremental Term Loans that are designated as First Out Obligations shall be treated no more favorably than the First Out Term Loans, except those that only apply after the Latest Maturity Date with respect to the Term Loans, and (2) for purposes of mandatory prepayments, any such Incremental Term Loans that are designated as Second Out Obligations shall be treated no more favorably than the Second Out Term Loans, except those that only apply after the Latest Maturity Date with respect to the Term Loans; provided, further, that no Incremental Term Loans may be incurred for the primary purpose of influencing the voting thresholds set forth in this Agreement.
(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)); provided that, no Incremental Revolving Credit Commitment Increase (including any undrawn commitment thereunder) may be incurred for the primary purpose of influencing the voting thresholds set forth in this Agreement.
(iii) The Additional/Replacement Revolving Credit Commitments (A) shall (x) be secured only by all or a portion of the Collateral securing the Obligations on an equal priority basis with the Obligations with respect to Lien priority, (y) not be guaranteed by any Subsidiary that is not a Credit Party and (z) to the extent consisting of a First Lien Obligation, constitute either a First Out Obligation, Second Out Obligation or Third Out Obligation (as selected by the Borrower in its sole discretion, subject to the limitations set forth in the Incremental Limit), (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 or 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 (subject, in the case of currency types other than Dollars, Euros and the other Alternative Currencies, to the consent of the Administrative Agent, such consent not to be unreasonably withheld) and denominations, prepayment terms and premiums and other economics 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, 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 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 (x) except with respect to matters contemplated by clauses (B), (C), (D) and (E) above, any differences shall be, at the option of the Borrower, either (i) reasonably satisfactory to the Administrative Agent (at the Direction of the Required Lenders) (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 whole, at the time of the Incurrence or effectiveness of such Incremental Facility (as determined by the Borrower in good faith) or (iii) not be materially more restrictive on the Borrower and its Subsidiaries than the terms of this Agreement, when taken as a whole and (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 include such 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 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)); provided, further, that in connection with a Limited Condition Transactionfor purposes of mandatory prepayments, at the time of any 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 Additional/Replacement Revolving Credit Commitments that are designated as First Out Obligations shall be effected pursuant to one or treated no more Joinder Agreements executed and delivered by favorably than the Borrower and Administrative Agent and such lenders providing Revolving Credit Facility, except those that only apply after the New Loan Commitments, and each of which shall be recorded in the Register and shall be subject Latest Maturity Date with respect to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shallRevolving Credit Facility; provided, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitmentsfurther, 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 that no Additional/Replacement Revolving Credit Commitments may be incurred for the primary purpose of influencing the voting thresholds set forth 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 Commitmentsthis Agreement.
(bd) On any Increased Amount Date on 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 the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. Incremental Term Loans which New may be made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments are effectedwhich 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 (ait being understood that no existing Lender will be required to participate in any Incremental Facility or any Incremental Commitments in respect thereof or make any loans in connection therewith) 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 L▇▇▇▇▇’s or Additional Lender’s making such Incremental Term Loans or providing such New Incremental Revolving Credit Commitment to the extent Increases or such consent, Additional/Replacement Revolving Credit Commitments if any, such consent 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 Revolvinunde
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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” 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 fiscal quarter, 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 related revolving credit loans thereundercash proceeds
(b) Any Lender approached to participate in any New Loan Commitments may elect or decline, “Existing Revolving Credit Loans”; each Existing 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
(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 (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of 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 3.06. 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. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that
(i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with all the other Original Facilities, not be Guaranteed by any Person that is not a Borrower or Guarantor under each of the other Facilities, and be unsecured or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Commitments Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (2iii) no Extended Revolvinwith respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o
Appears in 1 contract
Sources: Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Incremental Facilities. (a) The Borrower may, from time to time after the Closing Date, upon notice by written notice the Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (each, an “Incremental Credit Facility”) (such Person (who may be (i) the Administrative Agent, elect if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (A) 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) (each, a “Revolving Credit Commitment Increase”), or (B) the establishment addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the 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 Term Loan CommitmentsRevolving Commitment”), and/or (y) additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments” and, ; and together with the New Term Loan CommitmentsRevolving Credit Commitment Increase, the “New Loan Commitments”), by in an aggregate amount not in excess of to exceed 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 sum of:
(i) with respect to New Loan Commitments incurred in reliance the greater of clause (aA) $250,000,000 and (B) 100.0% 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 Four Quarter Consolidated EBITDA minus (ii) the New Loan Commitments shall be effected amount of any Indebtedness previously incurred in reliance on this clause (w) as Incremental Credit Facilities pursuant to one or more Joinder Agreements executed Section 2.14 (and delivered by not redesignated as incurred under (1) any other provision of the Borrower and Administrative Agent and such lenders providing the New Loan CommitmentsIncremental Amount in accordance with this Agreement, and each of which shall be recorded (2) Ratio Debt in the Register and shall be subject to the requirements set forth in first paragraph of 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 7.01 or (b3) as part of a Series of existing Term Loans for all purposes any other provision 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 CommitmentsCash-Capped Incremental Facility”) 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 (CarGurus, 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 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. (ai) The Borrower may, from time to time after the Closing Date, upon notice by written notice the Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (such Person (who may be (i) the Administrative Agent, elect if it so agrees or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), 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) (each, 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 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 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 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 not to its New Term Loan Commitment exceed the sum of such Series, (x) the greater of (A) $130,000,000 and (iiB) each New Term Loan Lender 75% of any Series shall become a Lender hereunder with respect Four Quarter Consolidated EBITDA, minus the amount incurred prior to the New Term Loan Commitment date of such Series incurrence thereof under the Second Lien Cash-Capped Incremental Amount (and not reclassified in accordance with the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Second Lien Credit Agreement) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of pari passu Term Loans and New Term Loan Commitments (including, for the avoidance of doubt, 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 security with the Initial Term Loans, if the Effective Yield for Term SOFR Loans or ABR Loans in respect ) made pursuant to Section 2.05(a) and (B) all repurchases and/or cancellations of such New pari passu Term Loans exceeds (including, for the Effective Yield for Term SOFR Loans or ABR Loansavoidance of doubt, respectively, in respect of the Initial Term Loans, or prior any New Term Loans, as applicable, by more than ) made pursuant to the terms hereof (iin an amount equal to the face amount of the principal amount repurchased and/or cancelled) in the case of any such New Term Loans denominated in U.S. Dollars, 0.50%, and (ii) in voluntary prepayments of Revolving Credit Loans (including, for the case avoidance of any such New Term Loans denominated in a currency other than U.S. Dollarsdoubt, 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 Loans) made pursuant to Section 2.05(a) to the related New Revolving Credit Loans shall be on terms as determined extent accompanied by the Borrower and set forth a corresponding, permanent reduction 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 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 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)) (the “Prepayment-Based Incremental Facility”) (such sum, at any such time and subject to Section 1.02(i), 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 applicable Extension Amendment. Notwithstanding anything case of any New Loan Commitments denominated in a foreign currency, the equivalent principal amount thereof then outstanding in such foreign currency, converted to Dollars in accordance with Section 1.08, and (y) the contrary in 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 this Section 2.14 or otherwiseand Incremental Equivalent Debt incurred pursuant to Section 2.15:
(A) At the Borrower’s option, no Extended Term Loans the Borrower shall be deemed to have used amounts under the Ratio-Based Incremental Facility (to the extent compliant therewith), prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility, and the Borrower shall be deemed to have used the Prepayment-Based Incremental Facility prior to utilization of the Cash-Capped Incremental Facility,
(B) New Loan Commitments pursuant to this Section 2.14 and Incremental Equivalent Debt pursuant to Section 2.15 may be optionally prepaid prior incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction or series of related transactions by, at the Borrower’s option, first calculating the incurrence under the Ratio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility or any amounts substantially concurrently incurred under Section 7.01 (other than any Ratio Debt or Ratio Acquisitions Debt incurred pursuant to Section 7.01) and then calculating the incurrence under the Prepayment Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash Capped Incremental Facility) and then calculating the incurrence under the Cash-Capped Incremental Facility,
(C) all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility shall automatically cease to be deemed incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility and shall instead be deemed incurred under the Ratio-Based Incremental Facility from and after the first date on which the Existing Term Loan Class from which they were converted is repaid in fullBorrower would be permitted to incur all or such portion, except in accordance with as applicable, of the second to last sentence aggregate principal amount of Section 5.1(a). No Lender such Indebtedness under the Ratio-Based Incremental Facility (which, for the avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility and/or the Prepayment-Based Incremental Facility, as applicable, by all or such portion, as applicable, of the aggregate principal amount of such Indebtedness), 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 obligation cash proceeds incurred pursuant to agree to have this Section 2.14 and/or Incremental Equivalent Debt 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 for purposes of calculating Adjusted Cash or Cash Equivalents. The Borrower may designate any of its Term Loans Incremental Arranger of any Existing Term New 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 Commitments with such titles under the Existing Term New Loan Class from which they were convertedCommitments as the Borrower may deem appropriate.
(ii) For the avoidance of doubt, the Borrower will not be obligated to approach any Lender to participate in any New Loan Commitments. 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 Borrower may at any time and from time also invite additional Eligible Assignees reasonably satisfactory to time request that all or the Incremental Arranger and, solely in connection with 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 Increase or New Revolving Facility, with the consent of the Administrative Agent and related Existing each L/C Issuer (to the extent the consent of any of the foregoing would be required to assign Revolving Credit Loans together being referred to such Eligible Assignee, which consent shall not be unreasonably withheld, delayed or conditioned) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as an “Existing Revolving Credit Class”such) shall be converted required to extend the termination date thereof execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and the scheduled maturity date(s) of such execution shall not be required for any payment of principal such joinder agreement to be effective; provided that, 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 New Loan Commitments, the Borrower shall must provide a notice to the Administrative Agent the documentation providing for such New Loan Commitments.
(who iii) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Loan Facility or New Revolving Facility is added in accordance with this Section 2.14, the Incremental Arranger and the Borrower shall provide a copy determine the effective date (the “Increase Effective Date”) and the final allocation of such notice to each of increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the applicable Class final allocation of Existing such increase, New Term Facility or New Revolving Credit Commitments 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 writing (which such request shall may 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 executed 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 delivered by the Borrower and the Lender providing Extended Incremental Arranger (and the Lenders hereby authorize 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 pursuant to the documentation relating to such New Term Facility or New Revolving 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 Borrower 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.
(iv) With respect to any Revolving Credit CommitmentsCommitment 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)) would exist immediately after giving effect to such increase); provided, however, that (x) the scheduled final maturity date shall be extended and (yii)
(A) in 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 case of any increased margins contemplated by increase of 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 otherwiseRevolving 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) the final maturity shall be no earlier than the Maturity Date applicable to the Revolving Credit Facility and (2) no amortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required, (C) in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans, Specified Refinancing Term Loans or Extended 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, Specified Refinancing Term Loans or Extended Term Loans, as applicable; provided, that Extendable Bridge Loans/Interim Debt may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and, with respect to Extendable Bridge Loans/Interim Debt, 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/Interim Debt, such New Term Facility shall have a final maturity no earlier than the then Latest Maturity Date of any Term Loan Tranche and the Weighted Average Life to Maturity of such New Term Facility shall be no shorter than that of any existing Term Loan Tranche; (iii) except with respect to the All-in Yield and as set forth in subclause (D) above with respect to final maturity and Weighted Average Life to Maturity, any such New Term Facility or New Revolving Facility shall have terms reasonably satisfactory to the Incremental Arranger; and (iv) to the extent reasonably requested by the Incremental Arranger and expressly set forth in the documentation relating to such New Term Facility or New Revolving Facility, the Incremental Arranger shall have received legal opinions, resolutions, officers’ certificates, reaffirmation agreements and/or subsequent ranking agreements or amendment agreements to, confirmations of and/or lower ranking Collateral Documents, as applicable, 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, the Borrower and each material Subsidiary Guarantor (other than changes to such legal opinions resulting from a change in connection Law, change in fact or change to counsel’s form of opinion). Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be solely those agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrower. Notwithstanding the foregoing, (x) to the extent any terms of any Term Commitment Increase, Revolving Credit Commitment Increase, New Term Facility or New Revolving Facility are more favorable to the existing Lenders than comparable terms existing in the Loan Documents, such terms (if favorable to the existing Lenders) may be, in consultation with a permanent repayment and termination the Incremental Arranger, incorporated into this Agreement (or any other applicable Loan Document) for the benefit of commitmentsall existing Lenders (to the extent applicable to such Lender) without further amendment requirements (including, for the avoidance of Loans with respect doubt, at the option of the Borrower, the Borrower may, but shall not be required to, increase the Applicable Rate or amortization payments relating to any Original existing Term Facility to bring such Applicable Rate in line with the relevant Term Commitment Increase or New Term Facility to achieve fungibility with such existing Term Facility), (y) the terms of any New Revolving Facility shall be substantially identical to the Revolving Credit Commitments Facility, except for (i) terms that are applicable only after the then Latest Maturity Date of the Revolving Credit Facility or (ii) such terms as may be included subject solely as to administrative matters and subject to the Administrative Agent’s consent (such consent not to be unreasonably withheld, delayed or conditioned) and (z) the terms of any New Term Facility or New Revolving Facility may be incorporated if otherwise reasonably satisfactory to the Borrower, the Incremental Arranger and the Administrative Agent. To the extent the Borrower establishes a New Revolving Facility, then the Administrative Agent and the Borrower shall be made permitted to amend this Agreement to require borrowings and repayments on a pro rata basis with all other Original among Revolving Tranches (except for (A) payments of interest and fees at different rates on the Revolving Credit Commitments (and related outstandings), (2B) no Extended Revolvinrepayments requi
Appears in 1 contract
Sources: First Lien Credit Agreement (ZoomInfo Technologies 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, 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. (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.
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 At 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 subject to 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”) terms and to provide for other terms consistent with this Section 2.14(h). In order to establish any Extended Term Loansconditions set forth herein, the Borrower shall provide a may, 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 of Lenders), request to incur one or more increases in the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders Tranche A Credit Commitments (a “Term Loan Extension RequestIncremental Tranche A Commitments” or the “Incremental Facilities”) 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, howeverthat, that (x) upon the scheduled final maturity date effectiveness of each Incremental Facility Amendment, no Default or Event of Default has occurred and is continuing or 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 Amendmentresult therefrom. Notwithstanding anything to the contrary herein, without the consent of the Tranche A Required Lenders, the aggregate amount of the Incremental Facilities shall not exceed, at any time, the sum of (i) $300 million (the “Incremental Fixed Amount”) plus (ii) the amount of all optional prepayments of Borrowings of Tranche A Loans in this accordance with Section 2.14 2.12(a) to the extent such prepayments are accompanied by a permanent reduction in the Tranche A Credit Commitments in accordance with Section 2.10(b) so long as such prepayment is not funded with a concurrent incurrence of Indebtedness. All Incremental Tranche A Commitments shall be in an integral multiple of $1.0 million and in an aggregate principal amount that is not less than $25.0 million (or otherwisein such lesser minimum amount agreed by the Administrative Agent); provided, that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability in respect of the Incremental Facilities. For the avoidance of doubt, no Extended Term incremental facilities in respect of the FILO 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 convertedincurred.
(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. (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 Aggregate Revolving Commitment Amount, (II) increase the Aggregate Term Loan A Commitment Amount, (III) increase the Aggregate DDTL Commitment Amount, and/or (IV) establish one (1) or more additional term loans of a separate Class (that, in any such case of this clause (e)(i)(IV) and for purposes of clarity, are (x) additional tranches of term loans or increases in pari passu with all other Term Loans of any Class (the commitments theretooutstanding under this Agreement, the “New Term Loan Commitments”), and/or (y) additional tranches secured by the same Collateral, and the Guaranty from the same Guarantors, as all other Term Loans outstanding under this Agreement, and (z) subject to the same representations and warranties, covenants, and events of revolving loans default that are applicable to the other Term Loans as set forth in this Agreement and the other Credit Documents), 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 Incremental Facilities, taken together, shall not exceed the Incremental Cap;
(B) each Incremental Facility shall be in Revolving Credit Commitments a minimum original principal or committed amount of any Class Ten Million Dollars (the “New Revolving Credit Commitments” $10,000,000), and, together with the New Term Loan Commitmentsif greater, the “New Loan Commitments”), by in an aggregate amount not integral multiple of Five Million Dollars ($5,000,000) 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: (1) agreement to provide such Commitment; and (2) 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 the Borrower and each other Credit Party, that, both immediately before and immediately after giving effect to the establishment and/or incurrence (as applicable) of such Incremental Facilities AmountFacility and the consummation of any related transactions (including, without limitation, any Acquisitions) substantially contemporaneously in connection therewith:
(I) no Default or Event of Default 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 VI) 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; and
(III) the Credit Parties are in compliance, on a Pro Forma Basis (and assuming, in the case of any Incremental Revolver Increase or any Incremental DDTL Increase, that the new or additional Commitments of the applicable Class established thereby are fully utilized), with each of the TTM-Measured Financial Covenants;
(F) the Collateral Agent shall have received such Increased Amount Date amendments to the Collateral Documents as the Collateral Agent shall request in order to cause the Collateral Documents to secure the Obligations (in a manner consistent with 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 establishment of any Incremental Revolver Increase, then the Borrower shall, if applicable, prepay one (1) or more of the then outstanding Revolving Loans (any such prepayment to be subject to Section 3.1(c)) in an amount necessary such that, immediately after giving effect to such New Loan CommitmentsIncremental Revolver Increase, as applicable (and, otherwise, no Event each Lender will hold its respective pro rata share of Default under Section 12.1 or Section 12.5 shall exist and be continuing)outstanding Revolving Loans; provided, furtherthat, any such prepayment may be effected, in whole or in part, pursuant to a cashless rollover in accordance with Section 1.6;
(H) any increased or new Commitments established in respect of an existing (as of the date that in connection with a Limited Condition Transaction, at is immediately prior to the time date of establishment of such Increased Amount Date and at Incremental Facility) Class of Commitments shall have terms substantially identical to those for Commitments of such Class under this Agreement as of the time a definitive agreement date that is entered into immediately prior to the date of establishment of such Incremental Facility, except for fees payable to the Lenders providing increased or new Commitments in respect of such Limited Condition Transaction, there is no Event of Default under Section 12.1 or Section 12.5) and Incremental Facility;
(iiI) the New Loan Commitments shall be effected pursuant terms and provisions applicable 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 any Incremental Term Loan Commitments, be designated as (a) of 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 not in conflict 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 this Agreement pertaining to Incremental Term Loans and New Term Loan Commitments of any Series shall Loans) 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); and
(iiIII) 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 by 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 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) have paid 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, (iiupfront and/or arrangement fee(s) 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 and/or incurrence (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 as applicable) of such existing Lenders; it being understood and Incremental Facility, as 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).writing; and
(iK) 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, except to the extent provided in otherwise required or expressly permitted pursuant to this Agreement (including, for purposes of clarity, the applicable Extension Amendmentforegoing of this clause (e)(i)), all other terms and conditions of any Incremental Term Loan of a Class separate from the Term Loan A and the Delayed Draw Term Loan shall be reasonably satisfactory to the Agents. Notwithstanding anything to the contrary in the foregoing of this Section 2.14 clause (e)(i): (I) neither any 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, any 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 Agents, 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 establish any such Incremental Facility pursuant to the foregoing clause (e)(i) and to implement such 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 1 contract
Sources: Credit Agreement (Heritage Insurance Holdings, Inc.)
Incremental Facilities. (a) The Borrower may, may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more (x) additional tranches term loans, which may be of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the commitments for additional term loans of the same Class or increases in a separate Class, collectively, the “Incremental Term Loan Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Loan Increase”) or a separate Class of Term C Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term C Loan Commitments”) and/or (z) revolving credit commitments, which may be of the same Class as any Class then-existing Revolving Credit Commitments (the commitments thereto, the “New Term Loan Revolving Credit Commitments”), and/or (y) additional tranches or a separate Class of revolving loans or increases in Revolving Credit Commitments of any Class (the commitments thereto, the “New Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loan Commitments and the Incremental Term C Loan Commitments, the “New Incremental Loan Commitments”), by an aggregate 123 AMERICAS 122173769123894352 amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.10.1(y)), not in excess of the Maximum Incremental Facilities Amount in at the aggregate time of incurrence thereof 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 at such New time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments obtained on shall be effective. The Borrower may approach any Lender or prior any Person (other than a natural Person) to such date)provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the aggregate principal amount of all New Revolving Credit Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall not exceed $35,000,000 during the term of this Agreementhave no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such New Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that that, (i) with respect to New Loan Commitments incurred in reliance of (x) other than as described inunless the immediately succeeding clause (ay) of the definition of Maximum Incremental Facilities Amountis applicable, no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such New Incremental Loan CommitmentsCommitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Permitted Acquisition or other acquisition constituting a permitted Investment, as applicable (andor in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption noticeLimited Condition Transaction, otherwise, then no Event of Default under (A) Section 12.1 11.1 or Section 12.5 11.5 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of on such Increased Amount Date and at (B) such other provisions of Section 11 as may otherwise be required by the time a definitive agreement is entered into in respect Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of such Limited Condition Transactionany Incremental Loans thereunder, there is no Event of Default under Section 12.1 or Section 12.5) and (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Loan Commitments, on an Increased Amount Date, there shall be no requirement for the New Borrower to bring down the representations and warranties under the Credit Documents unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments (provided that, in the case of Incremental Loans or Incremental Loan Commitments used to finance a Permitted Acquisition or other acquisition constituting a permitted Investment, only the Specified Representations (conformed as necessary for such acquisition) shall be required to be true and correct in all material respects if requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments), (iii) the Incremental Loan Commitments shall be effected pursuant to one or more Joinder Agreements Incremental Amendments 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) and (e), and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the Incremental Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New For all purposes of this Agreement, (a) 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, shall be designated as (ax) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Loan Increase, a part of the series of existing Term C Loans subject to such increase, and (c) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans, Term C Loans or Revolving Credit Commitments, each, 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 Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the foregoing following terms and 124 AMERICAS 122173769123894352 conditions, (ax) with respect to New Revolving Credit Commitments, each of the Revolving Credit Lenders with an existing Revolving Credit Commitment of the Class being increased by such New Revolving Credit Commitments of such Class shall assign automatically and without further act be deemed to have assigned to each Revolving Credit Lender with a New Revolving Credit Commitment of such Class (each, a “New Revolving Loan Lender”) ), and each of the such New Revolving Loan Lenders shall purchase from automatically and without further act be deemed to have purchased and assumed, (i) a portion of such Revolving Credit Lender’s participations hereunder in outstanding Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the percentage of the Lenders with aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Credit Lender holding Revolving Credit Loans (including each such New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit Commitments of such Classall Revolving Credit Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the Revolving Credit Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchasesassumptions, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders under such Class and New Revolving Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the such existing Revolving Credit CommitmentsCommitments (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 this clause (x)), and (by) with respect to New any Incremental Revolving Credit Commitments, (i) each New Incremental 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 (each, a “New Revolving Credit Loan”) and each loan made under an Additional Revolving Credit Commitment (each, an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Revolving Credit 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 Revolving Credit Lender with respect to the New applicable Incremental 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 (x) on which any New Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and conditions, (i) each Lender with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) of any Series shall make a term loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series, and (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto and (y) on which any Incremental Term C Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New an Incremental Term C Loan Commitment (each, a “New Incremental Term C Loan Lender”) of any Series shall make a Loan term letter of credit loan to the Borrower (a “New Incremental Term C Loan” and, together with the New Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its New Incremental Term C Loan Commitment of such Series, and (ii) each New Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the New Incremental Term C Loan Commitment of such Series and the New Incremental Term C Loans of such Series made pursuant thereto.
(d) . The terms and provisions Borrower shall use the proceeds, if any, 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 for any purpose not prohibited 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, this Agreement and amortization schedule applicable to any Incremental Loans shall be determined as agreed 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 (ilender(s) 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 AmendmentIncremental Loans. 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 RevolvinAMERICAS 122173769123894352
Appears in 1 contract
Sources: Credit Agreement (Vistra 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 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, 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
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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 Tranche B 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 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.
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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 (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
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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 -100- in the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition, other Investment (andincluding any Investment in new facilities or projects) or similar transactions or any repayment, otherwiseprepayment, 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, ¥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, ¥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 that is no greater than either (x) 4.50:1.00 or (y) the principal amount thereof, Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to 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 purchasesAcquisition or other Investment (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), 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 (including any Investment in new facilities or projects) or other similar transaction and Incremental Term Loans in an amount not exceeding the Incremental/Refinancing Maturity Limitation Excluded Amount, 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 twenty-four (24) months after the Closing Date, in the Joinder Agreement; provided event that the Effective Yield for any Incremental Term Loans that are broadly marketed or syndicated floating rate term “B” loans denominated in Dollars (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 Incurred in connection with an Acquisition, Investment (without giving effect to prepaymentsincluding any Investment in new facilities or projects) of the Initial Term Loansor similar transactions, (iii4) 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(5) Incurred under the Incremental Ratio Debt Amount or (6) in an aggregate principal amount equal to or less than the greater of (x) $110,000,000 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 (6) shall be an aggregate basket and not measured per Incurrence of Incremental Term Loans (clauses (1) through (6), 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 Benchmark; (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 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 (except for covenants and other than for terms related to interest and fees provisions or requirements applicable only to the periods after the Revolving Credit Latest Maturity Date Date), (ii) consistent with market terms and conditions, when taken as a whole, at the time of the Existing Revolving Credit Class that are Incurrence or effectiveness of such Incremental Facility (as determined by the Borrower in good faith) or (iii) not being extended) to be agreed between materially more restrictive on the Borrower and its Restricted Subsidiaries than the Lender providing Extended Revolving Credit Commitments; providedterms of this Agreement, however, that (x) the scheduled final maturity date shall be extended when taken as a whole and (y)
(A) the interest margins with respect to the Extended documentation governing any Additional/Replacement Revolving Credit Commitments may be higher or lower than include any Previously Absent Covenant so long as the interest margins Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Covenant for the applicable Existing Revolving benefit of each Credit Commitments Facility (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional feesprovided, 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)further, in each casehowever, to the extent provided in that, if the applicable Extension Amendment. Notwithstanding anything to Previously Absent Covenant is a “springing” financial maintenance covenant for the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination benefit 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 Revolvinsuch revolving credit facility o
Appears in 1 contract
Incremental Facilities. (a) The A Borrower may, by written notice by the Parent Borrower to the Administrative Agent, elect to request request, from time to time, on one or more occasions, (i) the establishment of one or more new term loan commitments (x) additional tranches by way of adding one or more new term loan facilities and/or increasing the term loans or increases in Term Loans of any Class under an existing term loan facility prior to its maturity date) (the commitments thereto, the “New Term Loan Commitments”), ) and/or (yii) additional tranches the establishment of one or more new revolving loans commitments (by way of adding one or increases more revolving credit facilities and/or increasing any existing Class of Revolving Commitments prior to their applicable Maturity Date) denominated in Revolving Credit Commitments of any Class dollars or an Alternative Currency (the “New Revolving Credit Commitments” and, together with the New Term Loan 103 US-DOCS\159452469.6 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 agreed by the Persons providing the same, in a principal amount (A) not less than the applicable Extension Amendment. Notwithstanding anything Dollar Equivalent of $50,000,000 individually (or such lesser amount which shall be reasonably approved by the Administrative Agent or that shall constitute the remaining available amount of New Commitments permitted to be established pursuant to and in accordance with this Section 2.24(a)), 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) after the Fourteenth Amendment Effective Date (other than amounts incurred pursuant to the contrary in this Section 2.14 or otherwiseRatio-Based Prong), no Extended Term Loans may be optionally prepaid an aggregate amount equal to the sum of the Dollar Equivalent of (1) (X) prior to the date Hurricane Acquisition Closing Date, the greatest of (x) $2,710,000,000, (y) 10.50% of Total Assets and (z) 85.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on which a pro forma basis), and (Y) on and after the Existing Term Loan Class from which they were converted is repaid in fullHurricane Acquisition Closing Date, except in accordance with the second to last sentence greatest of (x) $4,500,000,000, (y) 10.50% of Total Assets and (z) 85.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis) (this clause (1), the “Free and Clear Amount”), plus (2) amounts available under Section 5.1(a6.01(b)(xxii) at such time (it being understood that usage of such amounts shall reduce availability under such basket on a dollar-for-dollar basis) (this clause (2). No Lender shall have any obligation to agree to have any of its Term Loans , the “Reallocated Amount”), plus (3) the aggregate amount 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 voluntary prepayment, redemption, repurchase or other retirement of Term Loans and/or any permanent reductions of the commitments under any Revolving Facility (including loan buybacks and open market purchases permitted under this Agreement and the other Loan Documents or termination 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 Commitmentyank-a-bank” 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 caseprovisions, to the extent provided of the actual purchase price paid in cash) and/or the amount of any permanent prepayment of Indebtedness secured on a pari passu basis with the Guaranteed Obligations (this clause (3), the “Prepayment Amount”), plus (4) in the applicable Extension Amendment. Notwithstanding anything case of New Commitments that serve to effectively refinance, replace and/or extend the maturity of then-existing Term Loans, Revolving Commitments and/or Revolving Loans, an amount equal to the contrary portion of such Term Loans, Revolving Commitments and/or Revolving Loans to be replaced with such New Commitments (this clause (4), the “Replacement Amount” and, the Replacement Amount, collectively with the Free and Clear Amount, the Reallocated Amount and the Prepayment Amount, the “Non-Ratio Based Prong”), in the case of the Prepayment Amount and the Replacement Amount, to the extent not funded or effected with any long term Indebtedness (other than revolving Indebtedness); provided that, any Borrower shall also have the right to obtain additional New Commitments without regard to the Non-Ratio Based Prong in an unlimited amount (the “Ratio-Based Prong” and, the Ratio-Based Prong, together with the Non-Ratio Based Prong, the “Maximum Incremental Amount”) so long as, in the case of this Ratio-Based Prong, on a pro forma basis after giving effect to the incurrence of such New Commitments incurred pursuant to this Section 2.14 2.24 or otherwiseany Indebtedness incurred pursuant to Section 6.01(b)(xxiii), and the application of the proceeds thereof (without netting the cash proceeds thereof, and, in the case of any New Commitments in the form of New Revolving Commitments, Revolving Commitments and/or Revolving Loans, or revolving facilities or revolving commitments pursuant to Section 6.01(b)(xxiii) then being established, assuming a full drawing thereunder), (1) in the borrowing case of Indebtedness secured by a Lien on the Collateral that ranks pari passu with the Lien securing the Guaranteed Obligations, the Consolidated First Lien Net Leverage Ratio would not exceed, on a pro forma basis, (X) prior to the Hurricane Acquisition Closing Date, 1.25:1.00, and repayment (other than Y) on and after the Hurricane Acquisition Closing Date, 3.50:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a permanent repayment and termination prospective Investment as contemplated by the definition of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made “Specified Transaction”), disposition or capital expenditure, the Consolidated First Lien Net Leverage Ratio (on a pro rata forma basis with all other Original Revolving Credit Commitments for such transaction and the incurrence of such Indebtedness) would not exceed the greater of (A) (X) prior to the Hurricane Acquisition Closing Date, 1.25:1.00, and (Y) on and after the Hurricane Acquisition Closing Date, 3.50:1.00, and (B) the Consolidated First Lien Net Leverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure), (2) no Extended Revolvinin the case of Indebtedness secured by a Lien on the Collateral that ranks junior to the Lien securing the Guaranteed Obligations, the Consolidated Secured Net Leverage Ratio would not exceed, on a pro forma basis, (X) prior to the Hurricane Acquisition Closing Date, 1.75:1.00, and (Y) on and after the Hurricane Acquisition Closing Date, 4.00:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure, the Consolidated Secured Net Leverage Ratio (on a pro forma basis for such transaction and the incurrence of such Indebtedness) would not exceed the greater of (A) (X) prior to the Hurricane Acquisition Closing Date, 1.75:1.00, and (Y) on and after the Hurricane Acquisition Closing Date, 4.00:1.00, and (B) the Consolidated Secured Net Leverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as 104 US-DOCS\159452469.6
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
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. Borrower may (a) The Borrower may, by written notice from Borrower to Revolving Facility Administrative Agent, elect to request prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Commitments (any such increase, the “New Revolving Loan Commitments”) and/or (b) by written notice from Borrower to and the Term Administrative Agent elect to request prior to the Maturity Date, 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”), in an aggregate principal amount of (i) the New Term Loan Commitments and the New Revolving Loan Commitments plus (ii) the aggregate principal amount of Debt Incurred pursuant to Sections 6.1(b)(xxiii) and (xxiv) not in excess of (A) $50,000,000 in the aggregate pursuant to this clause (A) prior to date of determination plus (B) at Borrower’s option, an unlimited amount of New Term Loan Commitments and/or the New Revolving Loan Commitments so long as the First Lien Net Leverage Ratio is no more than 4.25:1.00 as of the last day of the Fiscal Quarter most recently ended for which a Compliance Certificate required under Section 5.1(c) has been delivered, after giving effect to any such incurrence on a Pro Forma Basis (y) additional tranches of revolving loans or increases in Revolving Credit Commitments and excluding the proceeds of any Class New Revolving Loans and/or New Term Loans from Unrestricted Cash in clause (b) of the definition of Consolidated Total Debt in calculating the First Lien Net Leverage Ratio for purposes of this Section 2.24 and, in the case of unsecured or junior lien Debt Incurred pursuant to Section 6.1(b)(xxiii), calculated assuming such debt is Consolidated First Lien Secured Debt), and, in each case, with respect to any New Revolving Loan Commitment, assuming a borrowing of the maximum amount of Loans available thereunder (such aggregate amount, the “Incremental Amount”). Each New Term Loan Commitment or New Revolving Credit Commitments” andLoan Commitment shall be in a principal amount that is not less than $5,000,000 (or such lesser amount which shall be approved by the applicable Administrative Agent or such lesser amount that shall constitute the difference between $5,000,000 and all such New Revolving Loan Commitments and New Term Loan Commitments obtained prior to such date), together with and integral multiples of $1,000,000 in excess of that amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which Borrower proposes that the New Revolving Loan Commitments or New Term Loan Commitments, the “New Loan Commitments”)as applicable, by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and shall be effective, which shall be a date not less than $5,000,000 individually (or 10 Business Days after the date on which such lesser amount as (x) may be approved by notice is delivered to the Term Administrative Agent or such shorter period of time as consented to by the Term Administrative Agent. Borrower may invite any Lender or other Person that is an Eligible Assignee (yeach, a “New Revolving Loan Lender” or “New Term Loan Lender”, as applicable) shall constitute the difference between the Maximum Incremental Facilities Amount and all such to provide a New Revolving Loan Commitments obtained on Commitment or prior to such date)New Term Loan Commitment, as applicable; provided that any Lender 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 Agreementor New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitment or a New Term Loan Commitment. In each case, such Such New Revolving Loan Commitments or New Term Loan 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 Default or Event of Default shall exist on such Increased Amount Date immediately before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable (and, otherwiseapplicable; provided that in the case of New Revolving Loan Commitments or New Term Loan Commitments the purpose of which is to finance a Permitted Acquisition or other similar Investment, no Event of Default under pursuant to clauses (a), (f) or (g) of Section 12.1 or Section 12.5 8.1 shall exist and be continuing); provided, further, that in connection with a Limited Condition Transaction, at the time of on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; (2) both before and at after giving effect to the time making of any Series of New Term Loans, each of the conditions set forth in Section 3.2(a)(iii) shall be satisfied; provided that in the case of New Revolving Loan Commitments or New Term Loan Commitments the purpose of which is to finance a definitive agreement is entered into Permitted Acquisition or other similar Investment, the representations and warranties required under this clause (2) shall be limited only to representations set forth in respect of Sections 4.1, 4.2, 4.3, 4.4, 4.6, 4.7, 4.28, 4.29 and 4.30) if so agreed to by the New Revolving Loan Lenders or New Term Loan Lenders, as applicable, providing such Limited Condition TransactionNew Revolving Loan Commitments or New Term Loans Commitments, there is no Event of Default under Section 12.1 or Section 12.5) and as applicable; (ii3) the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent and such lenders providing Borrower, the New Revolving Loan CommitmentsLender or New Term Loan Lender, as applicable, and applicable Administrative Agent, and each of which shall be recorded in the Register and each New Revolving Loan Lender and New Term Loan Lender shall be subject to the requirements set forth in Section 5.4(e2.20(e); (4) Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the New Revolving Loan Commitments or New Term Loan Commitments, as applicable; and (5) Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the applicable 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 The proceeds of the New Revolving Loan Commitments and New Term Loan Commitments or New Revolving Credit Commitments may be incurred in Dollars applied by Borrower for working capital and general corporate purposes of Parent and its Subsidiaries and any other currency at use not prohibited by this Agreement including, without limitation, the election financing of any Permitted Acquisition or similar Investment; provided that the Borrower New Revolving Loan Commitments and agreed to by the Administrative Agent in its sole discretion. No Lender New Term Loan Commitments shall be required not used to provide prepay any New Loan Commitments.
(b) Subordinated Debt. On any Increased Amount Date on which New Revolving Credit Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Revolving Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “of the New Revolving Loan Lender”) Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such ClassLenders, 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 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 Loan Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (ib) each New Revolving Credit Loan Commitment shall be deemed for all purposes a Revolving Credit Commitment and, and each 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 (iic) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Loan 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”) 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.
. The applicable Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each Increased Amount Date and in respect thereof (dy) the New Revolving Loan Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (z) in the case of each notice to any Revolving Lender, the respective interests in such Revolving Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section 2.24. The terms and provisions of the New Revolving Loans shall be identical to the Revolving Loans. 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 herein or in the applicable Joinder Agreement; provided that . In any event (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 of any Series shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the Revolving Loans or the Initial Term Loans (whichever is longest), (ii) the applicable Maturity Date of each Series shall be no shorter than the latest of the final maturity of the Revolving Loans and the Term Loans, (iii) no Subsidiary the Weighted Average Yield applicable to the New Term Loans of Holdings (other each Series shall be determined by Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, the Weighted Average Yield applicable to the New Term Loans shall not be greater than the Borrower or a Guarantor) applicable Weighted Average Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Initial Term Loans plus 0.50% per annum unless the interest rate with respect to the Initial Term Loan is an obligor increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Initial Term Loans to equal the Weighted Average Yield then applicable to the New Term Loans less 0.50% and (iv) if all other terms of the New Term Loans and New Term Loan Commitments are securedCommitments, are if 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 consistent 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 terms 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 applicable must be adjusted so that the Effective Yield in respect of the Initial Term Loans or prior New Term Loans, as applicable, is equal reasonably acceptable 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) Administrative Agent. 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 applicable Administrative Agent, 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)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
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Nord Anglia Education, 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 additional Term Loans or add one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Incremental Term Loan CommitmentsLoans”), and/or one or more increases in the Revolving Facility Commitments (y) the “Incremental Revolving Increases”), or one or more additional tranches of revolving loans or increases in Revolving Credit Commitments of any Class commitment (the “New Incremental Revolving Credit Facility Commitments” and, and together with the New Incremental Term Loan CommitmentsLoans and the Incremental Revolving Increases, the “New Loan CommitmentsIncremental Facilities”), in each case subject to the terms and conditions in this Section 2.22.
(b) Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities shall not exceed:
(i) the greater of (x) $19.0 million and (y) 42% of Consolidated EBITDA of the Borrower for the prior four consecutive fiscal quarters for which the Required Financial Statements required to be delivered have been or are required to have been delivered to the Administrative Agent pursuant to Section 5.04, in each case determined at the time of incurrence (the “Fixed Incremental Amount”; net of the aggregate amount of Incremental Equivalent Debt incurred in reliance on the Fixed Incremental Amount); plus
(ii) an unlimited amount of Indebtedness that is secured on a pari passu basis with the Facilities if, on a Pro Forma Basis, the First Lien Net Leverage Ratio is equal to or less than 4.15:1.00; plus
(iii) an unlimited amount of junior lien facilities or unsecured debt if (x) in the case of junior lien facilities, on a Pro Forma Basis, the Secured Net Leverage Ratio is equal to or less than 4.15:1.00 and (y) in the case of unsecured debt, the Total Net Leverage Ratio is equal to or less than 3.90:1.00 (clauses (b)(ii) and (iii) above, the “Ratio Incremental Amount”); (the sum of the amounts in clauses (i) through (iii) above, the “Available Incremental Amount”); provided that Incremental Facilities may be incurred under clauses (i) through (iii) in a single transaction by first calculating the portion of the Indebtedness being incurred under clauses (ii) and/or (iii) above (without giving effect to the Indebtedness being incurred under clause (i) above) and second calculating the portion of the Indebtedness being incurred under clause (i) above. Any Indebtedness incurred under clause (i) above shall be automatically reclassified as Indebtedness incurred under clause (ii) or (iii) above if the Borrower meets the applicable leverage ratio under clause (ii) or (iii) at such time on a Pro Forma Basis (provided that Pro Forma Basis shall not be calculated net of proceeds of any incurrence of such Incremental Term Loans). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and 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 such lesser minimum 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 reasonable discretion); provided that such amount may be less than the applicable minimum amount or integral multiple amount if such amount represents all the remaining availability under the Fixed Incremental Amount.
(c) Each notice from the Borrower pursuant to this Section 2.22 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Increases and/or Incremental Revolving Facility Commitments. No Incremental Term Loans, Incremental Revolving Increases and/or Incremental Revolving Facility Commitments may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide Incremental Term Loans, Incremental Revolving Increases or Incremental Revolving Facility Commitments nor shall the Borrower be required to provide offer any New Loan Commitments.
(b) On existing Lender the opportunity to participate in such Incremental Facility), in each case, on terms permitted under this Section 2.22 or any Increased Amount Date on which New Revolving Credit Commitments are effectedAdditional Lender; provided that the Administrative Agent, subject to the satisfaction of the foregoing terms and conditionsand, (a) with respect to New any Incremental Revolving Credit CommitmentsIncrease or Incremental Revolving Facility Commitment, each Issuing Bank shall have consented (in each case, such consent not to be unreasonably withheld, delayed or conditioned) to any existing Lender or Additional Lender’s providing such Incremental Term Loans, Incremental Revolving Increases and/or Incremental Revolving Facility Commitments if such consent by the Administrative Agent (and each Issuing Bank) would be required under Section 9.04 for an assignment of Loans or Revolving Facility Commitments to such Lender or Additional Lender. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender or Additional Lender providing such Incremental Facility and the Administrative Agent, and so long as the requirements of this Section 2.22 are met, without the consent of any other existing Lender. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Facility Amendment. Each of the Lenders parties hereto hereby agrees that, upon the effectiveness of any Incremental Facility Amendment, this Agreement and the other Loan Documents, as applicable, shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Facility and the Incremental Term Loans, Incremental Revolving Increases and/or Incremental Revolving Facility Commitments evidenced thereby. Upon each increase in Revolving Facility Commitments in accordance with this Section 2.22, (i) each Revolving Credit Commitments of Lender immediately prior to such Class shall assign increase will automatically and without further act be deemed to have assigned to each Lender with a New or Additional Lender providing such Incremental Revolving Credit Commitment Increases (each, a an “New Incremental Revolving Loan Lender”) in respect of such increase or extension, and each of the New such Incremental Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments Lender will automatically and without further act be deemed to have assumed, a portion of such Class, at the principal amount thereof, Revolving ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit 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 each such assignments deemed assignment and purchasesassumption of participations, the Revolving percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit Loans of such Class will and (ii) the Administrative Agent may, in consultation with the Borrower, take any and all actions as may be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class reasonably necessary to ensure that, after giving effect to such Lender’s Incremental Revolving Facility Commitments or Incremental Revolving Increases, the addition percentage of the aggregate Revolving Facility Commitments held by each Revolving Lender (including each such New Incremental Revolving Credit Lender) will equal the percentage of the aggregate Revolving Facility Commitments to of all Revolving Lenders presented by such Revolving Lender’s Revolving Facility Commitment (which may be accomplished, at the Revolving Credit Commitments, and (b) discretion of the Administrative Agent following consultation with respect to New Revolving Credit Commitmentsthe Borrower, (i) each New by requiring the outstanding Revolving Credit Commitment shall Loans to be deemed for all purposes prepaid with the proceeds of a Revolving Credit Commitment andnew Borrowing, 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 by causing non-increasing Revolving Loan Lender shall become Lenders to assign portions of their outstanding Revolving Loans to Incremental Revolving Lenders or (iii) by a Lender combination of the foregoing).
(i) Any Incremental Facility shall, as determined by the Borrower, rank pari passu or junior in right of payment with respect the Obligations and be unsecured or secured by the Collateral on either a pari passu or junior basis with the Obligations (and to the New Revolving Credit Commitment and all matters relating thereto; provided that extent subordinated in right of payment or security, subject to intercreditor arrangements on terms reasonably satisfactory to 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 DateBorrower), (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 Incremental Term Loans that are secured by on a Lien pari passu basis with the Obligations may provide for the ability of the Lenders or Additional Lenders providing such Incremental Term Loans to participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Collateral Term Loans (it being understood that any mandatory prepayments of any junior secured or unsecured Incremental Term Loans may not be made except to the extent that prepayments are made, to the extent required under the Term Facilities or (to the extent permitted hereunder) any Indebtedness that is junior to the Lien securing secured on a pari passu basis with the Obligations, first pro rata to the Term Facilities and any such pari passu secured Indebtedness), (iii) the interest rate, upfront fees and original issue discount for any Incremental Term Loans, Incremental Revolving Increase or that is unsecured, Incremental Revolving Facility Commitments 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 thereunderor Additional Lenders providing such Incremental Term Loans, Incremental Revolving Increase or Incremental Revolving Facility Commitments; provided that, that with respect to any floating rate New Incremental 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 in the event that the Effective Yield for Term SOFR Loans or ABR Loans in respect of on such New Incremental Term Loans (the “Incremental Yield”) exceeds the Effective Yield for on the Term SOFR Loans or ABR Loans, respectively, in respect of the Initial Term Loans, or prior New Term Loans, as applicable, hereunder 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 then the interest margins for the Term Loans hereunder shall automatically be increased to a level such that the Effective Yield on such Term Loans is 0.50% below the Incremental Yield (it being agreed that (x) any amendment to the Applicable Margin on the Initial Term Loans that became effective subsequent to the Closing Date but prior to the effectiveness of the Incremental Term Loans shall be included in determining the Effective Yield and (y) any increase in Effective Yield to any existing facility required due to the application of a Eurocurrency Rate or ABR “floor” on any Incremental Facility shall be effected solely through an increase therein (or implementation thereof, as applicable)) (such Existing Term Loan Class and/or (B) additional feesadjustment, premiums or applicable high-yield discount obligation the (“AHYDOMFN Adjustment”) 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), (iv) except as otherwise provided in each casethis Section 2.22, to the extent provided in such terms are not substantially consistent with the applicable Extension Amendment. Notwithstanding anything to existing Term Facility, the contrary in this Section 2.14 or otherwisecovenants, no Extended representations, events of default and guarantees of any such Incremental Term Loans may shall 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 reasonably satisfactory to the Administrative Agent (who shall provide a copy it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Incremental Facility, such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request covenant 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 deemed “reasonably satisfactory” to the Existing Revolving Credit Class Administrative Agent if such financial maintenance covenant is (other than 1) also added for terms related to interest and fees the benefit of any corresponding existing Term Facility or (2) only applicable only to periods after the Revolving Credit Latest 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; providedany existing Term Facility), however, that (xv) the scheduled final maturity date of any Incremental Term Loan shall be extended and (y)
(A) no earlier than the interest margins Maturity Date with respect to the Extended Revolving Credit Commitments may Initial Term Loans (or, in the case of any Incremental Term Loans secured on a junior basis to the Incremental Facility or that is unsecured, the final maturity date of such Incremental Term Loans shall be higher or lower no earlier than the interest margins for date that is 91 days following the applicable Existing Revolving Credit Commitments Maturity Date), (vi) the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable Weighted Average Life to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu Maturity of any increased margins contemplated by Incremental Term Loan shall be no shorter than the preceding clause remaining Weighted Average Life to Maturity of the Initial Term Loans (Awithout giving effect to prepayments), in each case, (vii) subject to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, clauses (1v) 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 Revolvinand
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Sources: Credit Agreement
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 or any Guarantor may, from time to time after the Closing Date, upon(a) notice by written notice the Borrower to Administrative Agent, elect the Person appointed by the Borrower to request the establishment of one or more arrange an incremental Facility (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments theretosuch Person, the “New Term Loan CommitmentsIncremental Arranger”)) specifying the proposed amount thereof and the proposed currency denomination thereof, 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 request (i) with respect to New Loan Commitments incurred an increase 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 any 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 Tranche then outstanding (each, a “New Revolving Loan LenderTerm Commitment Increase”), (ii) 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 one or more new term loan facilities, in each case, in such New Revolving Credit Commitments to currency or currencies as 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 Borrower identifies in 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 notice (each, a “New Term Loan LenderFacility”) of ; and any Series shall make advance made by a Loan to the Borrower (Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment”) and/or (iii) the establishment of one or more new revolving credit commitments (each a “New Revolving Facility”; and any advance made by a Lender thereunder, a “New Revolving Loan”; and the commitments thereof, the “New Revolving Commitment” 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 Increase and the New Term Loans Commitments the “New Loan Commitments”) by (or in) a principal amount not to exceed the sum 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 Datesum, (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 at 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%time, 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 “Available 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 ClassAmount”) 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 sum of (the scheduled amortization payments amount available under this clause (x), the “Cash-Capped Incremental Facility”) (I) the greater 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 $206,000,000 and (B) additional fees, premiums or applicable high-yield discount obligation 100% of Consolidated EBITDA of the Group Parties (and after giving effect to any acquisition consummated concurrently therewith on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent with the definition of “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 (AConsolidated EBITDA” and Section 1.10), 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.
plus (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 (xII) the scheduled final maturity date shall be extended and General Debt Basket Reallocated Amount, minus (y)
(AIII) 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 feesIncremental Equivalent Cash Component Debt, 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 Revolvinplus 112
Appears in 1 contract
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:
Appears in 1 contract
Sources: Commitment Letter
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
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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 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) 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. (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 (it being understood and agreed that the Tranche C Incremental Amount is acceptable to 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)), 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) after the Sixth Amendment Effective Date, an aggregate amount (the “Maximum Incremental Facilities Amount and all such New Loan Commitments obtained 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 dateNew Commitments are established multiplied by 25% plus (3) an amount not to exceed $45,000,000 (the “Tranche C Incremental Amount”); provided that the Maximum Incremental Amount shall be deemed to be not less than the sum of (I) Dollar Equivalent of $1,295,000,000 (this clause (I), the “Free and Clear Amount”), (II) the aggregate amount of any voluntary prepayment, redemption, repurchase or other retirement of Term Loans and/or any permanent reductions of the commitments under any Revolving Facility (including loan buybacks and open market purchases permitted under this Agreement and the other Loan Documents or termination from the “yank-a-bank” provisions, to the extent of the actual purchase price paid in cash) and/or the amount of any permanent prepayment of Indebtedness in the form of pari passu Incremental Equivalent Debt, in each case to the extent that the relevant prepayment is not funded or effected with any long term Indebtedness (other than revolving Indebtedness) (this clause (II), the “Prepayment Amount”), and (III) an additional amount for Indebtedness secured by a Lien on the Collateral, so long as, in the case of this clause (III), the Consolidated Secured Leverage Ratio would not exceed, on a pro forma basis, 3.50:1.00 (this clause (III), the “Ratio Amount”), it being understood and agreed that, unless the Borrower otherwise elects, availability under the Ratio Amount shall be deemed used prior to availability under the Free and Clear Amount and the Prepayment Amount; provided, further, that the Maximum Incremental Amount shall be reduced by the aggregate principal amount of all any New Revolving Credit 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 exceed $35,000,000 during less than five Business Days after the term of this Agreementdate on which such notice is delivered to the Administrative Agent. In each case, such Such New Loan 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 making of any Series of New Term Loans or New Revolving Loans, the condition set forth in Section 4.01(d) shall be satisfied; (3) solely if the applicable New Commitments are being provided during a definitive agreement is entered into Test Period and subject to Section 1.05, the Borrower and its Subsidiaries shall be in respect pro forma compliance with the financial covenant set forth in Section 6.12 as of such Limited Condition Transaction, there is no Event the last day of Default under Section 12.1 or Section 12.5the 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 Len▇▇▇’▇ 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 or, if more restrictive to the Borrower (taken as a whole), are either (x) then conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or the Administrative Agent, as applicable, pursuant to an amendment hereto (with any such amendment being effected in consultation with the Administrative Agent, but only requiring execution by the Borrower) or (y) not materially more favorable (taken as a whole) to the lenders or the agent of such New Term Loans and New Term Commitments; 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 unless the interest rate margin (and the interest rate floor, if applicable) with respect to the then outstanding Term Loans is increased by an amount equal to the difference between the all-in yield with respect 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 (iii) any New Term Loans 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 effect on the Increased Amount Date with respect to such New Revolving Loans and New Revolving Commitments or, if more restrictive to the Borrower (taken as a whole), are either (x) then conformed (or added) to the Loan Documents for the benefit of the applicable Revolving Lenders or the Administrative Agent, as applicable, by more than pursuant to an amendment hereto (i) in the case of with any such New Term Loans denominated amendment being effected in U.S. Dollarsconsultation with the Administrative Agent, 0.50%, and but only requiring execution by the Borrower) or (iiy) in not materially more favorable (taken as a whole) to the case lenders or the agent of any such New Term Revolving 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 and 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%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 2.142.24.
(g) Notwithstanding anything in this Section 2.24 to the contrary, 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 provided 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 reliance on the Tranche C Incremental Amount shall be provided solely as Tranche C Revolving Commitments (and shall constitute Tranche C Revolving Commitments for all purposes of Term Loans in respect thereofthis Agreement and the other Loan Documents).
(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: Credit Agreement (NRG Energy, 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 Parent 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 (i) the Administrative Agent or greater of (yA) shall constitute $61,000,000 and (B) 100% of Consolidated EBITDA for the difference between most recently ended four fiscal quarter period for which internal financial statements are delivered or, at the Maximum Incremental Facilities Amount option of the Parent Borrower, otherwise available, (and after giving effect to any acquisition consummated concurrently therewith on a Pro Forma Basis and all such New Loan Commitments obtained on or prior to such dateother appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.10); 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 , in each case, such minus the amount incurred prior to the date of incurrence thereof under (1) any New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) with respect to New Loan Commitments Incremental Debt incurred in reliance of on this clause (ax) and 2) any Ratio Debt incurred in reliance on clause (x) of the first proviso to the first paragraph of Section 7.01, plus (ii) unused amounts under Section 7.01(l) (provided that any usage under this clause (x)(ii) shall reduce the amount available under Section 7.01(l) and, to the extent secured, clause (25) 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 “SeriesPermitted Liens”) of New Term Loans for all purposes of (the amount described in this Agreement or clause (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 Loansx), the “Cash-Capped Incremental LoansFacility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) in so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) 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 Debt 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 Debt 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 in not funded with the applicable Extension Amendment. Notwithstanding anything to proceeds of long term Indebtedness (other than, for the contrary in this Section 2.14 or otherwiseavoidance of doubt, no Extended Term Loans may be optionally prepaid proceeds of any revolving credit facility (including the Revolving Credit Facility)), minus the amount incurred prior to the date of incurrence thereof under (1) any New Incremental Debt incurred in reliance on which this clause (z) and (2) any Ratio Debt incurred in reliance on clause (y) of the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with first proviso to the second to last sentence first paragraph of Section 5.1(a7.01, and in the case of any such prepayment or repurchase at a price below par, based on the amount of principal repaid or repurchased (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”). No Lender ; provided that any such request for an increase shall have be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any obligation 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 agree this Section 2.14 and New Incremental Debt issued pursuant to Section 2.15:
(A) the Borrowers shall be deemed to have used amounts under the Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facilities, 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 Debt pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any of its Term Loans such incurrence may be utilized in a single transaction by first calculating the 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 and/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 Debt 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 from netting (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 the Borrowers 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 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 then 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 the 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, including, for the avoidance of doubt, at the option of the Parent Borrower, any increase in the applicable interest rate margin or amount of amortization in line with the New Term Facility to achieve fungibility with such existing Facilities) 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, Sect
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Incremental Facilities. (a) The A Borrower may, by written notice by the Parent Borrower to the Administrative Agent, elect to request request, from time to time, on one or more occasions, (i) the establishment of one or more new term loan commitments (x) additional tranches by way of adding one or more new term loan facilities and/or increasing the term loans or increases in Term Loans of any Class under an existing term loan facility prior to its maturity date) (the commitments thereto, the “New Term Loan Commitments”), ) and/or (yii) additional tranches the establishment of one or more new revolving loans commitments (by way of adding one or increases more revolving credit facilities and/or increasing any existing Class of Revolving Commitments prior to their applicable Maturity Date) denominated in Revolving Credit Commitments of any Class dollars or an Alternative Currency (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 agreed by the Persons providing the same, in a principal amount (A) not less than the applicable Extension Amendment. Notwithstanding anything Dollar Equivalent of $50,000,000 individually (or such lesser amount which shall be reasonably approved by the Administrative Agent or that shall constitute the remaining available amount of New Commitments permitted to be established pursuant to and in accordance with this Section 2.24(a)), 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) after the Fifteenth Amendment Effective Date (other than amounts incurred pursuant to the contrary in this Section 2.14 or otherwiseRatio-Based Prong), no Extended Term Loans may be optionally prepaid an aggregate amount equal to the sum of the Dollar Equivalent of (1) (X) prior to the date Hurricane Acquisition Closing Date, the greatest of (x) $2,710,000,000, (y) 10.50% of Total Assets and (z) 85.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on which a pro forma basis), and (Y) on and after the Existing Term Loan Class from which they were converted is repaid in fullHurricane Acquisition Closing Date, except in accordance with the second to last sentence greatest of (x) $4,500,000,000, (y) 10.50% of Total Assets and (z) 85.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis) (this clause (1), the “Free and Clear Amount”), plus (2) amounts available under Section 5.1(a6.01(b)(xxii) at such time (it being understood that usage of such amounts shall reduce availability under such basket on a dollar-for-dollar basis) (this clause (2). No Lender shall have any obligation to agree to have any of its Term Loans , the “Reallocated Amount”), plus (3) the aggregate amount 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 voluntary prepayment, redemption, repurchase or other retirement of Term Loans and/or any permanent reductions of the commitments under any Revolving Facility (including loan buybacks and open market purchases permitted under this Agreement and the other Loan Documents or termination from the Existing “yank-a-bank” provisions, to the extent of the actual purchase price paid in cash) and/or the amount of any permanent prepayment of Indebtedness secured on a pari passu basis with the Guaranteed Obligations (this clause (3), the “Prepayment Amount”), plus (4) in the case of New Commitments that serve to effectively refinance, replace and/or extend the maturity of then-existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time Loans, Revolving Commitments and/or Revolving Loans, an amount equal to time request that all or a the portion of the such Term Loans, Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any Revolving Loans to be replaced with such New Revolving Credit CommitmentsCommitments (this clause (4), each existing at the time of such request (each“Replacement Amount” and, an “Existing Revolving Credit Commitment” the Replacement Amount, collectively with the Free and any related revolving credit loans thereunderClear Amount, “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 Reallocated Amount 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 CommitmentsPrepayment Amount, the Borrower shall provide a notice “Non-Ratio Based Prong”), in the case of the Prepayment Amount and the Replacement Amount, 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 extent not funded or effected with any long term Indebtedness (other than for terms related revolving Indebtedness); provided that, any Borrower shall also have the right to interest obtain additional New Commitments without regard to the Non-Ratio Based Prong in an unlimited amount (the “Ratio-Based Prong” and, the Ratio-Based Prong, together with the Non-Ratio Based Prong, the “Maximum Incremental Amount”) so long as, in the case of this Ratio-Based Prong, on a pro forma basis after giving effect to the incurrence of such New Commitments incurred pursuant to this Section 2.24 or any Indebtedness incurred pursuant to Section 6.01(b)(xxiii), and fees applicable only the application of the proceeds thereof (without netting the cash proceeds thereof, and, in the case of any New Commitments in the form of New Revolving Commitments, Revolving Commitments and/or Revolving Loans, or revolving facilities or revolving commitments pursuant to periods Section 6.01(b)(xxiii) then being established, assuming a full drawing thereunder), (1) in the case of Indebtedness secured by a Lien on the Collateral that ranks pari passu with the Lien securing the Guaranteed Obligations, the Consolidated First Lien Net Leverage Ratio would not exceed, on a pro forma basis, (X) prior to the Hurricane Acquisition Closing Date, 1.25:1.00, and (Y) on and after the Revolving Credit Maturity Date Hurricane Acquisition Closing Date, 3.50:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure, the Existing Revolving Credit Class that are not being extended) to be agreed between the Borrower Consolidated First Lien Net Leverage Ratio (on a pro forma basis for such transaction and the Lender providing Extended Revolving Credit Commitments; providedincurrence of such Indebtedness) would not exceed the greater of (A) (X) prior to the Hurricane Acquisition Closing Date, however1.25:1.00, that and (xY) on and after the Hurricane Acquisition Closing Date, 3.50:1.00, and (B) the scheduled final maturity date shall be extended Consolidated First Lien Net Leverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure), (2) in the case of Indebtedness secured by a Lien on the Collateral that ranks junior to the Lien securing the Guaranteed Obligations, the Consolidated Secured Net Leverage Ratio would not exceed, on a pro forma basis, (X) prior to the Hurricane Acquisition Closing Date, 1.75:1.00, and (yY) on and after the Hurricane Acquisition Closing Date, 4.00:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”)
, disposition or capital expenditure, the Consolidated Secured Net Leverage Ratio (on a pro forma basis for such transaction and the incurrence of such Indebtedness) would not exceed the greater of (A) (X) prior to the Hurricane Acquisition Closing Date, 1.75:1.00, and (Y) on and after the Hurricane Acquisition Closing Date, 4.00:1.00, and (B) the Consolidated Secured Net Leverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure) and (3) in the case of unsecured Indebtedness or Indebtedness secured only by a Lien on assets that do not constitute Collateral either (A) the interest margins with respect Consolidated Total Net Leverage Ratio would not exceed, on a pro forma basis, (X) prior to the Extended Revolving Credit Commitments may be higher or lower than Hurricane Acquisition Closing Date, 4.00:1.00, and (Y) on and after the interest margins for the applicable Existing Revolving Credit Commitments Hurricane Acquisition Closing Date, 4.50:1.00 (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 caseor, 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 incurred in connection with an acquisition, Investment (including a permanent repayment and termination prospective Investment as contemplated by the definition of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made “Specified Transaction”), disposition or capital expenditure, the Consolidated Total Net Leverage Ratio (on a pro rata forma basis with all other Original Revolving Credit Commitments for such transaction and the incurrence of such Indebtedness) would not exceed the greater of (I) (X) prior to the Hurricane Acquisition Closing Date, 4.00:1.00, and (2Y) on and after the Hurricane Acquisition Closing Date, 4.50:1.00, and (II) the Consolidated Total Net Leverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure) or (B) the Fixed Charge Coverage Ratio would be no Extended Revolvinless than, on a pro forma basis, 2.00:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure, the Fixed Charge Coverage Ratio (on a pro forma basis for such transaction and the incurrence of such Indebtedness) would be no less than the lesser of (I) 2.00:1.00 and (II) the Fixed Charge Coverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure), it being understood and agreed that, unless the Parent Borrower otherwise elects, availability under the Ratio-Based Prong shall be deemed used prior to availability under the Free and Clear Amount, the Reallocated Amount, the Prepayment Amount or the Replacement Amount to the maximum extent permitted thereunder. 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.
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
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.
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/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, 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 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
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
Incremental Facilities. (a) The Borrower Borrowers may, from time to time after the Closing Date, arrange an incremental Facility (with such Person arranging such Facility (who may be (i) the Administrative Agent or (ii) any other Person appointed by written notice the Borrower Representative ), the “Incremental Arranger”) with such Facility being (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 Administrative Agentbe increased) (each, elect a “Revolving Credit Commitment Increase”), (ii) an increase in any Term Loan Tranche then outstanding (which shall be on the same terms as, and become part of, the Term Loan Tranche proposed to request be increased hereunder (except as otherwise provided in clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”), (iii) the establishment addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower Representative elects (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 Borrower Representative elects (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 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 not 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 exceed 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 Revolvinsum of:
Appears in 1 contract
Sources: Credit Agreement (Atotech LTD)
Incremental Facilities. (a) The Borrower may, by written notice to Administrative Agent, elect to request the establishment of one So long as no Default 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 exists 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 Loansarise therefrom, the Borrower shall provide a notice to have 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 establishedright, 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 after the Funding Date, (i) to request that all new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the commitments thereunder, the “Incremental Term Loan Commitments” and each a portion “New Term Facility”) and (ii) to increase the existing Term Loans by requesting new term loan commitments to be added to an existing Tranche of Term Loans (the Revolving Credit commitments thereunder, the “Supplemental Term Loan Commitments” and each a “Supplemental Term Facility”, and the Supplemental Term Loan Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit together with the Incremental Term Loan Commitments, each existing the “Incremental Commitments”), provided that, the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.14 shall not exceed, at the time of such request (eachthe respective Incremental Commitment becomes effective, an “Existing Revolving Credit Commitment” and any related revolving credit the Maximum Incremental Facilities Amount. Any 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) made in respect of any payment of principal with respect such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to all or this Section 2.14 shall be in a portion of any principal minimum aggregate amount of Loans related to at least $15,000,000 and in integral multiples of $5,000,000 in excess thereof (or 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 lesser amounts as 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 (ymay agree)
(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 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
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