Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment of one or more new tranches of term facilities denominated in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum of
Appears in 2 contracts
Sources: Credit Agreement (Azz Inc), Credit Agreement (Azz Inc)
Incremental Facilities. (a) The CompanyParent Borrower may, or if agreed from time to time after the Closing Date, upon notice by all of the Lenders under Parent Borrower to the applicable Incremental Facility, a Guarantor Administrative Agent and the Person appointed by the Parent Borrower to arrange an incremental Facility (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facilityeach, an “Additional BorrowerIncremental Credit Facility”) may, by written notice to (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent 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 (i) an increase in the establishment Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (each, 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 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 tranches revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (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 (iv) the addition of one or more new term facilities denominated loan facilities, in Dollars each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, ; and any Incremental Term Loans or any Extended Term Loans advance made by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (eacha Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment”; and together with the Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any Commitment Increase, the New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Commitments and the Term Facility, “Incremental Facilities” andCommitment Increase, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental LoansNew Loan Commitments”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, ;) in an aggregate amount not in excess of to exceed the sum of:
Appears in 2 contracts
Sources: Credit Agreement (MeridianLink, Inc.), Credit Agreement (MeridianLink, Inc.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more (x) additional 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 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 then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “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 “Incremental Loan Commitments”), by an aggregate 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 at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to 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 Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments 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, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (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 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 Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, 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 Loan Commitments, as applicable. 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 Loans made on an Increased Amount Date shall be designated (x) 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 tranches or existing series of term facilities denominated in Dollars Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”).
(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) 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 shall 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 Term Revolving Loan FacilityLender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) and/or increase a portion of such Revolving Credit ▇▇▇▇▇▇’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 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 all 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 assumptions, the Initial Term Loans, any Incremental Term Revolving Credit Loans or any Extended Term Loans of such Class will be held by requesting new term loan commitments to be added to existing Revolving Credit Lenders under such Loans (together Class and New Revolving Loan Lenders under such Class ratably in accordance with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit FacilityLoan”) and/or request and each loan made under an increase in any Tranche of Additional Revolving Credit Commitments Commitment (together with any New Revolving Credit Facilityeach, an “Incremental Additional Revolving Credit FacilityLoan” and, together with any Incremental Term Facility, “Incremental Facilities” andNew Revolving Credit Loans, the loans thereunder, “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 applicable Incremental Revolving Credit Commitment and all matters relating thereto.
(c) On any Increased Amount Date (x) on which any 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 an Incremental Term C Loan Commitment (each, a “Incremental Term C Loan Lender”) of any Series shall make a term letter of credit loan to the Borrower (a “Incremental Term C Loan” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, in each case effected pursuant to a Term Loan Increase or Term C Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term 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 Loan Commitments or Incremental Term C Loan Commitments may be paid in connection with such Incremental Term Loan Commitments or Incremental Term C Loan Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related term letter of credit 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans of any Series not effected pursuant to a Term Loan Increase or Term C Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that:
(i) (x) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date and (y) the applicable Incremental Term C Loan Maturity Date of each Series shall be no earlier than the Initial Term C Loan Maturity Date, provided, the requirements of the foregoing clause (i) 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;
(ii) (x) the Weighted Average Life to Maturity of the applicable Incremental Term Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans) and (y) the Weighted Average Life to Maturity of the applicable Incremental Term C Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term C Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans);
(iii) the Incremental Term Loans, “Incremental Loans”)Term Loan Commitments, Incremental Term C Loans and Incremental Term C Loan Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and 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 Loans hereunder; provided that no existing Lender will have an obligation if such Incremental Term Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to make security with the First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable);
(iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental FacilityTerm Loans or Incremental Term C Loans shall be determined by the Borrower and the lender(s) thereunder; provided, nor will the Company have any obligation however, that, with respect to approach any existing Lenders to provide any Incremental FacilityTerm Loans or Incremental Term C Loans made under Incremental Term Loan Commitments or Incremental Term C Loan Commitments, if the Yield in respect of any Incremental Term Loans or Incremental Term C Loans that rank pari passu in right of payment and security with the Initial Term Loans, the Initial Term C Loans, the 2016 Incremental Term Loans and the 2018 Incremental Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable LIBOR Margin, as applicable, in an aggregate amount not respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, shall be adjusted so that the Yield in excess respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, is equal to the sum ofYield i
Appears in 2 contracts
Sources: Credit Agreement (Vistra Corp.), Credit Agreement (Vistra Corp.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more (x) additional 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 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 then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “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 “Incremental Loan Commitments”), by an aggregate 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 at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to 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 Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments 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, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (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 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 Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, 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 Loan Commitments, as applicable. 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 Loans made on an Increased Amount Date shall be designated (x) 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 tranches or existing series of term facilities denominated in Dollars Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”).
(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) 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 shall 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 Term Revolving Loan FacilityLender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) and/or increase 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 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 all 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 assumptions, the Initial Term Loans, any Incremental Term Revolving Credit Loans or any Extended Term Loans of such Class will be held by requesting new term loan commitments to be added to existing Revolving Credit Lenders under such Loans (together Class and New Revolving Loan Lenders under such Class ratably in accordance with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit FacilityLoan”) and/or request and each loan made under an increase in any Tranche of Additional Revolving Credit Commitments Commitment (together with any New Revolving Credit Facilityeach, an “Incremental Additional Revolving Credit FacilityLoan” and, together with any Incremental Term Facility, “Incremental Facilities” andNew Revolving Credit Loans, the loans thereunder, “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 applicable Incremental Revolving Credit Commitment and all matters relating thereto.
(c) On any Increased Amount Date (x) on which any 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 an Incremental Term C Loan Commitment (each, a “Incremental Term C Loan Lender”) of any Series shall make a term letter of credit loan to the Borrower (a “Incremental Term C Loan” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, in each case effected pursuant to a Term Loan Increase or Term C Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term 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 Loan Commitments or Incremental Term C Loan Commitments may be paid in connection with such Incremental Term Loan Commitments or Incremental Term C Loan Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related term letter of credit 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans of any Series not effected pursuant to a Term Loan Increase or Term C Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that:
(i) (x) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date and (y) the applicable Incremental Term C Loan Maturity Date of each Series shall be no earlier than the Initial Term C Loan Maturity Date, provided, the requirements of the foregoing clause (i) 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;
(ii) (x) the Weighted Average Life to Maturity of the applicable Incremental Term Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans) and (y) the Weighted Average Life to Maturity of the applicable Incremental Term C Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term C Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans);
(iii) the Incremental Term Loans, “Incremental Loans”)Term Loan Commitments, Incremental Term C Loans and Incremental Term C Loan Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and 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 Loans hereunder; provided that no existing Lender will have an obligation if such Incremental Term Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to make security with the First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable);
(iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental FacilityTerm Loans or Incremental Term C Loans shall be determined by the Borrower and the lender(s) thereunder; provided, nor will the Company have any obligation however, that, with respect to approach any existing Lenders to provide any Incremental FacilityTerm Loans or Incremental Term C Loans made under Incremental Term Loan Commitments or Incremental Term C Loan Commitments, if the Yield in respect of any Incremental Term Loans or Incremental Term C Loans that rank pari passu in right of payment and security with the Initial Term Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term Loans or Initial Term C Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable LIBOR Margin, as applicable, in an aggregate amount not respect of such Initial Term Loans or Initial Term C Loans, as applicable, shall be adjusted so that the Yield in excess respect of such Initial Term Loans or Initial Term C Loans, as applicable, is equal to the Yield in respect of such Incremental Term Loans or Incremental Term C Loans minus 0.50%; provided, further, to the extent any change in the Yield of the sum Initial Term Loans or the Incremental Term C Loans, as applicable, is necessitated by this clause (iv) on the basis of
Appears in 2 contracts
Sources: Credit Agreement (Vistra Energy Corp), Credit Agreement (Energy Future Competitive Holdings Co LLC)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more (x) additional 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 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 then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “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 “Incremental Loan Commitments”), by an aggregate 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 at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to 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 Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments 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, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (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 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 Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, 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 Loan Commitments, as applicable. 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 Loans made on an Increased Amount Date shall be designated (x) 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 tranches or existing series of term facilities denominated in Dollars Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”).
(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) 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 shall 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 Term Revolving Loan FacilityLender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) and/or increase 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 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 all 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 assumptions, the Initial Term Loans, any Incremental Term Revolving Credit Loans or any Extended Term Loans of such Class will be held by requesting new term loan commitments to be added to existing Revolving Credit Lenders under such Loans (together Class and New Revolving Loan Lenders under such Class ratably in accordance with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit FacilityLoan”) and/or request and each loan made under an increase in any Tranche of Additional Revolving Credit Commitments Commitment (together with any New Revolving Credit Facilityeach, an “Incremental Additional Revolving Credit FacilityLoan” and, together with any Incremental Term Facility, “Incremental Facilities” andNew Revolving Credit Loans, the loans thereunder, “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 applicable Incremental Revolving Credit Commitment and all matters relating thereto.
(c) On any Increased Amount Date (x) on which any 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 an Incremental Term C Loan Commitment (each, a “Incremental Term C Loan Lender”) of any Series shall make a term letter of credit loan to the Borrower (a “Incremental Term C Loan” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, in each case effected pursuant to a Term Loan Increase or Term C Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term 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 Loan Commitments or Incremental Term C Loan Commitments may be paid in connection with such Incremental Term Loan Commitments or Incremental Term C Loan Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related term letter of credit 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans of any Series not effected pursuant to a Term Loan Increase or Term C Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that:
(i) (x) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date and (y) the applicable Incremental Term C Loan Maturity Date of each Series shall be no earlier than the Initial Term C Loan Maturity Date, provided, the requirements of the foregoing clause (i) 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;
(ii) (x) the Weighted Average Life to Maturity of the applicable Incremental Term Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans) and (y) the Weighted Average Life to Maturity of the applicable Incremental Term C Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term C Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans);
(iii) the Incremental Term Loans, “Incremental Loans”)Term Loan Commitments, Incremental Term C Loans and Incremental Term C Loan Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and 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 Loans hereunder; provided that no existing Lender will have an obligation if such Incremental Term Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to make security with the First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable);
(iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental FacilityTerm Loans or Incremental Term C Loans shall be determined by the Borrower and the lender(s) thereunder; provided, nor will the Company have any obligation however, that, with respect to approach any existing Lenders to provide any Incremental FacilityTerm Loans or Incremental Term C Loans made under Incremental Term Loan Commitments or Incremental Term C Loan Commitments, if the Yield in respect of any Incremental Term Loans or Incremental Term C Loans that rank pari passu in right of payment and security with the Initial Term Loans, the Initial Term C Loans, the 2016 Incremental Term Loans and the 2018 Incremental Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable LIBOR Margin, as applicable, in an aggregate amount not respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, shall be adjusted so that the Yield in excess respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, is equal to the sum ofYield i
Appears in 2 contracts
Sources: Credit Agreement (Vistra Corp.), Credit Agreement (Vistra Energy Corp.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) Parent Borrower may, by written notice to the Administrative AgentAgent at any time, on one or more occasions, request the establishment of to (i) add one or more new tranches Classes of term facilities denominated in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial any Class of Term Loans, any Incremental Term Loans or any Extended Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facilitysuch new Class or increase, an “Incremental Term Facility” and, and any Loans loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request (ii) increase the establishment principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new tranches Classes of Revolving Credit Commitments incremental revolving facilities (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilitysuch new Class or increase, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, ”; and the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, ) in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof or (z) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the sum ofIncremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 2 contracts
Sources: Incremental Assumption Agreement and Refinancing Amendment to Credit Agreement (Coty Inc.), Credit Agreement (Coty Inc.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) Borrower may, by written notice to the Administrative Agent, elect to request the establishment of one or more new (x) additional tranches of term facilities denominated loans or increases in Dollars Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), (y) 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 $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), 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 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 and, subject to reclassification as set forth in Section 10.1, classify such Indebtedness as being incurred under clause (i) or clause (ii) 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 before or after giving effect to such New Loan Commitments, as applicable, and subject to Section 1.12, (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 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 shall, at the election of the Borrower and agreed to by Lenders providing such New 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. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement.
(b) Incremental Revolving Credit Commitments shall be subject to the satisfaction of the 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 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 Incremental Revolving Credit Commitments, (i) each 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 the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender.
(c) New Term Loan Commitments of any Series shall be subject to the satisfaction of the foregoing and following terms and conditions, each Lender with a New Term Loan Commitment (each, a “New Term Loan FacilityLender”) and/or increase of any Series shall make a Loan to the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans Borrower (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit FacilityTerm Loan” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term 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 and documentation set forth in the Joinder Agreement 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 any prepayments made in connection with the Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) above, amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that only during the period commencing on the Closing Date and ending on the thirty month anniversary of the Closing Date, if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New Term Loans consisting of Term Loans that are secured by the Collateral on a pari passu basis with the Initial Term Loans (other than any New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment) exceeds the Effective Yield for 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 is equal to the Effective Yield for 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) or (iii) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such 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 remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date);.
(e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that no existing Lender will have 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 obligation earlier maturity date with respect to make 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 FacilityRevolving Credit Commitments may constitute a separate Class or Classes, nor will as the Company 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 of the Additional Revolving Credit Loans may be different and shall be determined by the Borrower and the Lenders thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit 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 the Initial Revolving Credit Commitments and related Revolving Credit Loans, and
(ix) to the extent that any financial maintenance covenant is added for the benefit of any such 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 Loans remaining outstanding after the issuance or incurrence of such Indebtedness.
(f) 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 opinion of the Administrative Agent, to effect the provision of this Section 2.14.
(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 any obligation to approach any existing Lenders been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(g). In order to establish any Incremental FacilityExtended 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 not be materially more restrictive to the Credit Parties (as determined in good faith by the Borrowers), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (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 reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in an aggregate amount not each case as more particularly set forth in excess paragraph (iv) of this Section 2.14(g) below), (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 and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the sum ofLenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incur
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 Company(i) After the Restatement Effective Date and before the Term Loan Maturity Date (with respect to Term Loans) and the Revolving Termination Date (with respect to Revolving Loans), or if agreed by all of as applicable, the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, may request (x) the establishment of (x) one or more additional tranches of term loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) one or more increases in the Revolving Commitments (the “Incremental Revolving Commitments” and,; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Facilities Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Facilities Amount”) of the Incremental Loan Commitments shall not exceed $400,000,000785,000,000 plus the amount of the Term Loans repaid with the proceeds of (1) Senior Unsecured 2019 Notes or (2) any Incremental Term Loans; provided further, that the Maximum Incremental Facilities Amount shall be increased by an additional $200,000,000 upon consummation of the DTA Acquisition Step 1 in accordance with the terms and conditions set forth herein, and (ii) after the Restatement Effective Date and before the Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental 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. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment and (ii) any entity providing all or a portion of the Incremental Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed).
(b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that
(i) except for any Incremental Loan Commitment in connection with the DTA Acquisition, no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments,
(ii) except for any Incremental Loan Commitment in connection with the DTA Acquisition or the Avis Europe Acquisition, the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof),
(iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans,
(iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date,
(v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more new tranches arrangers (or their affiliates) in connection therewith) shall not exceed the sum of term facilities denominated (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in Dollars effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of theirsuch Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of theirsuch Revolving Commitments,
(vi) except for any Incremental Tranche A Term Loans, if the final maturity date of suchany Incremental Term Loans is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans (other than the Incremental Tranche A Term Loans) that is in effect on the Increased Amount Date, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans (other than the Incremental Tranche A Term Loans), which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loan (giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans, (y) the (other than the Incremental Tranche A Term Loans) that is in effect on the Increased Amount Date, (y) the OID or upfront fees paid to all of the Lenders in respect of their Term Loans (other than the Incremental Tranche A Term Loans) and (z) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
(▇▇▇) if the final maturity date of suchany Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and
(viii) the Increment Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “New Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan FacilityLender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans.
(c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ax) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and/or increase and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving 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 Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (by) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (cz) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Initial Term Loans, Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility.
(d) On any Increased Amount Date on which any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments Loan Commitments are effected, subject to be added to such Loans the satisfaction of the foregoing terms and conditions, (together i) each Person with any New an Incremental Term Loan FacilityCommitment (each, an “Incremental Term Facility” andLoan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, any and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments Synthetic L/C Commitment (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, Synthetic L/C Lender”; together with any Incremental Revolving Lenders and Incremental Term FacilityLoan Lenders, the “Incremental Facilities” and, the loans thereunder, Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. Notwithstanding anything in this Agreement to the contrary, (i) the references to the Term Loans in this Section 2.23 shall be deemed to include the Replacement Term Loans and (ii) the references to the Revolving Credit Loans” and, together with any Incremental Term Commitments or the Revolving Loans in this Section 2.23 shall be deemed to include the Extended Revolving Commitments or the Extended Revolving Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofas applicable.
Appears in 1 contract
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Parent Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more new (x) additional tranches of term facilities denominated loans (including on a delayed draw basis) (the commitments thereto, the “New Term Loan Commitments”), (y) increases in Dollars 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 $10,000,000 (or the Dollar Equivalent thereof) 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). Each such notice shall specify the date on which the Parent Borrower proposes that the New Loan Commitments shall be effective (the effective date, the “Increased Amount Date”), the Borrowers (including by appointing a Guarantor (other than Holdings) as a “Borrower”, subject to customary “know your customer” and equivalent procedures and compliance with Section 1.13 (which shall be deemed to apply to New Term Loan Commitments, mutatis mutandis)) to which such New Loan Commitments will be available and the currency in which such New Loan Commitments will be borrowed. Subject to Section 1.11(c), in connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Parent 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 Borrowers may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments; 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, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) (A) subject to Section 1.11(c), no Event of Default under Section 11.1 or Section 11.5 (solely with respect to a Borrower) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable and (B) after giving effect to such New Loan Commitments, the condition in Section 7.1(b) shall be satisfied (it being understood that all references to “the date of such Credit Event” or similar language in such Section 7.1 shall be deemed to refer to the applicable date determined in accordance with Section 1.11(c)); provided, further, that the lenders providing such New Loan Commitments may modify and/or waive the requirement regarding the condition in Section 7.1(b) for all purposes hereunder, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Parent Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), (iii) the New Loan Commitments (x) shall not be incurred or guaranteed by any Subsidiary other than any Credit Party and (y) if secured, shall not be secured by any assets other than the Collateral and (iv) the Borrowers 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 shall, at the election of the Parent 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. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement.
(b) On any Increased Amount Date on which 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 Incremental Revolving Credit Commitments, (i) each 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 (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 the Letter of Credit Issuer shall have consented (not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(a) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender.
(c) On or after the 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 FacilityLender”) and/or increase of any Series shall make a Loan to the principal amount Borrowers, as specified in the applicable Notice of the Initial Term LoansBorrowing, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit FacilityTerm Loan” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, the “Incremental Loans”) in an amount up 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 and documentation set forth in the Joinder Agreement as determined by the Parent Borrower; provided that (i) subject to the Inside Maturity Exceptions, the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date (as in effect at the time of such incurrence or obtaining of a commitment with respect thereto); (ii) subject to the Inside Maturity Exceptions, the weighted average life to maturity of all New Term Loans shall be no shorter than the remaining weighted average life to maturity of the then existing Initial Term Loans or the then existing Amendment No. 3 Term Loans (excluding the effects of any amortization of such New Term Loans in an amount no greater than 1.00% per annum and calculated without giving effect to prepayments of the Term Loans) (as in effect at the time of such incurrence or obtaining of a commitment with respect thereto), (iii) the mandatory prepayments of the New Term Loans shall be made on a pro rata basis (or less than pro rata basis) with all other Initial Term Loans and Amendment No. 3 Term Loans in the case of mandatory prepayments applicable to the Initial Term Loans or the Amendment No. 3 Term Loans, as applicable, (iv) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrower(s) and the Lenders thereunder; provided that in the case of broadly syndicated term loan “B” Dollar-denominated New Term Loans that are pari passu in right of payment and security with the then existing Initial Term Loans, if the Effective Yield for Term SOFR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans in respect of the then existing Initial Term Loans by more than 0.75%, the Applicable Margin for Term SOFR 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 is equal to the Effective Yield for Term SOFR Loans in respect of the New Term Loans minus 0.75% (this proviso, the “MFN Provision”) (provided, that to the extent such increase in Effective Yield is the result of a higher floor with respect to such New Term Loans, the increase in Effective Yield for the existing Initial Term Loans shall take the form of an increase in the Floor for such Initial Term Loans to the extent of the Effective Yield differential); provided, further, that the MFN Provision shall not apply to (1) New Term Loans incurred on or after the date that is 6 months after the Closing Date, (2) New Term Loans scheduled to mature on or after the date that is one year after the Initial Term Loan Maturity Date, (3) any New Term Loans originally incurred in reliance upon the Shared Incremental Amount or the Prepayment and Extension Amount, (4) any New Term Loans incurred in connection with a Permitted Acquisition or other permitted Investment or to refinance Indebtedness incurred in connection with a Permitted Acquisition or other permitted Investment, (5) any New Term Loans having an aggregate principal amount not exceeding the greater of $191,000,000 and 100% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as selected by the Parent Borrower and (6) any New Term Loans that constitutes a bridge facility (clauses (1), (2), (3), (4), (5) and (6), collectively, the “MFN Exceptions”); and (v) to the extent such terms and documentation are materially more favorable to the New Term Loan Lenders than the terms of the existing Initial Term Loans or the existing Amendment No. 3 Term Loans (except to the extent permitted (or, for the avoidance of doubt, not prohibited) by clause (i), (ii), (iii) or (iv) above), they shall be either (A) reasonably satisfactory to the Administrative Agent (provided that no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Initial Term Loan Maturity Date or if such covenants or other provisions are added for the benefit of the Initial Term Loans or the Amendment No. 3 Term Loans, as applicable), (B) then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness or (C) applicable only to periods after the Initial Term Loan Maturity Date.
(e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the InitialAmendment No. 4 Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that no existing Lender will have an obligation notwithstanding anything to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, contrary in an aggregate amount not in excess of the sum ofthis Section 2.14 or otherwise:
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Incremental Facilities. (ai) The Company, One or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor more Borrowers (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”Subsidiary Guarantors that will become Borrowers) may, by written notice at any time, on one or more occasions pursuant to the Administrative Agent, request the establishment of an Incremental Facility Amendment (i) add one or more new tranches Classes of term facilities denominated in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or of any Extended Term Loans existing Class by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facilitysuch new Class or increase, an “Incremental Term Facility” and, and any Loans loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request the establishment of (ii) add one or more new tranches Classes of revolving commitments and/or increase the aggregate amount of the Revolving Credit Commitments of any existing Class (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilitysuch new Class or increase, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”)) in an aggregate outstanding principal amount as of such date of determination not to exceed the Incremental Cap; provided that that: (I) no existing Lender will have an obligation to make Incremental Commitment in respect of any Incremental FacilityFacility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), nor will the Company have (II) except as separately agreed from time to time between a Borrower and any obligation to approach any existing Lenders Lender, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that no Borrower shall be obligated to offer the opportunity to any Lender to participate in any Incremental Facility, in an aggregate amount not in excess of the sum of),
Appears in 1 contract
Sources: Credit Agreement (Iron Mountain Inc)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) Borrower may, by written notice to the Administrative Agent, elect to request the establishment of one or more new (x) additional tranches of term facilities denominated loans or increases in Dollars Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), (y) 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 $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), 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 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 and, subject to reclassification as set forth in Section 10.1, classify such Indebtedness as being incurred pursuant to the applicable clause(s) 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 before or after giving effect to such New Loan Commitments, as applicable, and subject to Section 1.12, (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 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 shall, at the election of the Borrower and agreed to by Lenders providing such New 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. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement.
(b) Incremental Revolving Credit Commitments shall be subject to the satisfaction of the 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 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 Incremental Revolving Credit Commitments, (i) each 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 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 the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender.
(c) New Term Loan Commitments of any Series 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 FacilityLender”) and/or increase of any Series shall make a Loan to the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans Borrower (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit FacilityTerm Loan” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term 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 and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Tranche B 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 Tranche B-4-5 Term Loans as calculated without giving effect to any prepayments made in connection with the Tranche B-4-5 Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) above, amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that only during the period commencing on the Amendment No. 7 Effective Date and ending on the six-month anniversary of the Amendment No. 7 Effective Date, if the Effective Yield for SOFR Loans or ABR Loans in respect of broadly syndicated floating rate New Term Loans denominated in Dollars that are secured by the Collateral on a pari passu basis with the Tranche B-4 Term Loans (other than any New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment) exceeds the Effective Yield for SOFR Loans or ABR Loans in respect of the then existing Tranche B-4 Term Loans denominated in Dollars by more than 0.50%, the Applicable Margin for SOFR Loans or ABR Loans in respect of such then existing Tranche B-4 Term Loans shall be adjusted so that the Effective Yield in respect of such then existing Tranche B-4 Term Loans is equal to the Effective Yield for SOFR 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”); provided that no existing Lender will have an obligation the MFN Protection shall not apply to make any Incremental Facility, nor will (I) New Term Loans (as selected by the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, Borrower) in an aggregate amount not in excess up to the greater of (A) $1,170 million and (B) 200.0% of Consolidated EBITDA for the Test Period most recently ended on or prior to such date of determination (measured as of such date), (II) any New Term Loans incurred pursuant to clauses (ii) or (iii) of the sum ofdefinition of “Maximum Incremental Facilities Amount” or (III) any New Term Loans that mature later than the Tranche B Term Loan Maturity Date; and (iv) to the extent such terms and documentation are not consistent with the then existing Tranche B-4-5 Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such 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 remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date).
(e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Initial Revolving Credit Commitments and the related 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, subject to the provisions of Section 3.12 and Section 3A.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),
Appears in 1 contract
Sources: First Lien Credit Agreement (BrightSpring Health Services, Inc.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) Parent Borrower may, by written notice to the Administrative AgentAgent at any time, on one or more occasions, request the establishment of to (i) add one or more new tranches Classes of term facilities denominated in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial any Class of Term Loans, any Incremental Term Loans or any Extended Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facilitysuch new Class or increase, an “Incremental Term Facility” and, and any Loans loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request (ii) increase the establishment principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new tranches Classes of Revolving Credit Commitments incremental revolving facilities (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilitysuch new Class or increase, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, ”; and the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, ) in an aggregate amount not to exceed the Incremental Amount. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof or (z) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the sum ofIncremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans then outstanding and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans then outstanding, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred within 12 months of the Restatement Effective Date under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party and (ix) subject to clauses (i) and (ii) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by the Parent Borrower and lenders thereunder. All terms and documentation with respect to Incremental Facilities which are not substantially consistent from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Restatement Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 1 contract
Sources: Credit Agreement (Coty Inc.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) Parent Borrower may, by written notice to the Administrative AgentAgent at any time, on one or more occasions, request the establishment of to (i) add one or more new tranches Classes of term facilities denominated in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial any Class of Term Loans, any Incremental Term Loans or any Extended Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facilitysuch new Class or increase, an “Incremental Term Facility” and, and any Loans loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request (ii) increase the establishment principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new tranches Classes of Revolving Credit Commitments incremental revolving facilities (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilitysuch new Class or increase, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, ”; and the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, ) in an aggregate amount not to exceed the Incremental Amount. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof or (z) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the sum ofIncremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans then outstanding and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans then outstanding, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred within 12 months of the Restatement Effective Date under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party and (ix) subject to clauses (i) and (ii) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by the Parent Borrower and lenders thereunder. All terms and documentation with respect to Incremental Facilities which are not substantially consistent from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent ▇▇▇▇▇▇▇▇’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Restatement Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 1 contract
Sources: Credit Agreement (Coty Inc.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more (xw) additional 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 118 commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term Loan Commitments”), (yx) 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”), (y) additional commitments consisting of one or more letter of credit facilities (such commitments, collectively, the “Incremental Letter of Credit Commitments”) and/or (z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “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 “ and the Incremental Letter of Credit Commitments, the “Incremental Loan Commitments”), by an aggregate 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 10.1(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to 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 Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) unless the immediately succeeding clause (y) is applicable, no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (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 Borrower to bring down the representations and warranties under the Credit Documents, (iii) the Incremental Loan Commitments shall be effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(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). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) 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 119 Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new tranches or existing series of term facilities denominated in Dollars Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”).
(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) 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 shall 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 Term Revolving Loan FacilityLender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) and/or increase 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 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 all 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 assumptions, the Initial Term Loans, any Incremental Term Revolving Credit Loans or any Extended Term Loans of such Class will be held by requesting new term loan commitments to be added to existing Revolving Credit Lenders under such Loans (together Class and New Revolving Loan Lenders under such Class ratably in accordance with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit FacilityLoan”) and/or request and each loan made under an increase in any Tranche of Additional Revolving Credit Commitments Commitment (together with any New Revolving Credit Facilityeach, an “Incremental Additional Revolving Credit FacilityLoan” and, together with any Incremental Term Facility, “Incremental Facilities” andNew Revolving Credit Loans, the loans thereunder, “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 applicable Incremental Revolving Credit Commitment and all matters relating thereto.
(c) On any Increased Amount Date (x) on which any 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 an Incremental Term C Loan Commitment (each, a “Incremental Term C Loan Lender”) of any Series shall make a term letter of credit loan to the Borrower (a “Incremental Term C Loan” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the 120 “Incremental Loans”) in an amount equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, in each case effected pursuant to a Term Loan Increase or Term C Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term 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 Loan Commitments or Incremental Term C Loan Commitments may be paid in connection with such Incremental Term Loan Commitments or Incremental Term C Loan Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related term letter of credit 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. Any Incremental Loans incurred as a Term Loan Increase or Term C Loan Increase, as applicable, shall be fungible for the U.S. federal income tax purposes with the existing Class of Term Loans or Term C Loans, as applicable, proposed to be increased thereby. The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans of any Series not effected pursuant to a Term Loan Increase or Term C Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that:
(i) [reserved];
(ii) [reserved];
(iii) the Incremental Term Loans, Incremental Term Loan Commitments, Incremental Term C Loans and Incremental Term C Loan Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and 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 Loans hereunder; provided that if such Incremental Term Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to security with the First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured, secured solely by assets that do not constitute Collateral or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall either (I) not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor 121 Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable) or (II) be secured solely by assets that do not constitute Collateral;
(iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental Term Loans or Incremental Term C Loans shall be determined by the Borrower and the lender(s) thereunder; provided, however, that, with respect to any broadly syndicated Dollar-denominated Incremental Term Loans or Incremental Term C Loans in the form of “term b loans” made under Incremental Term Loan Commitments or Incremental Term C Loan Commitments, if the Yield in respect of any Incremental Term Loans or Incremental Term C Loans that rank pari passu in right of payment and security with the 2018 Incremental Loans as of the date of funding thereof exceeds the Yield in respect of the 2018 Incremental Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable Term SOFR Margin, as applicable, in respect of such 2018 Incremental Term Loans shall be adjusted so that the Yield in respect of such 2018 Incremental Term Loans is equal to the Yield in respect of such Incremental Term Loans or Incremental Term C Loans minus 0.50%; provided, further, to the extent any change in the Yield of the 2018 Incremental Term Loans is necessitated by this clause (iv) on the basis of an effective interest rate floor in respect of the Incremental Term Loans or Incremental Term C Loans, the increased Yield in the 2018 Incremental Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Yield effected solely by increases in the interest rate floor(s) applicable to the 2018 Incremental Term Loans (this clause (iv), the “MFN Adjustment”); provided provided, further, that no existing Lender will have an obligation the MFN Adjustment shall not apply to make any Incremental FacilityTerm Loans or Incremental Term C Loans (a) that mature on or after the twelve month anniversary of the 2018 Incremental Term Loan Maturity Date, nor will (b) that are incurred after the Company have any obligation to approach any existing Lenders to provide any twelve month anniversary of the Fifteenth Amendment Effective Date, (c) that are incurred in reliance on the Incremental FacilityFixed Dollar Basket or, (d) that are incurred in reliance on the Incremental Prepayment Basket, (e) that do not exceed an aggregate principal amount not in excess of the sum ofgreatest of (x) $2,500,000,000, (y) 50% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence and (z) 7.00% of Consolidated Total Assets as of the last day of the most recently ended Test Period (calculated on
Appears in 1 contract
Sources: Credit Agreement (Vistra Corp.)
Incremental Facilities. (a) The CompanyBorrower may, or if agreed from time to time after the Closing Date, upon notice by all of the Lenders under Borrower to the applicable Incremental Facility, a Guarantor Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facilityeach, an “Additional Borrower”"Incremental Credit Facility") may, by written notice to (such Person (who may be (i) the Administrative Agent, 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 (i) an increase in the establishment Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (each, 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 146 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 tranches of term revolving credit facilities denominated to the Facilities, in Dollars each case, in such currency or currencies as the Borrower identifies in such notice (each, a “"New Term Loan Revolving Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” " and, any Loans advance made pursuant to an Incremental Term Facility by a Lender thereunder, a "New Revolving Loan"; and the commitments thereof, the "New Revolving Commitment") and (including any New Term Loans), “Incremental Term Loans”iv) and/or request the establishment addition of one or more new tranches of Revolving Credit Commitments 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 Commitment"; and together with the Revolving Credit Commitment Increase, the New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental and the Term Facility, “Incremental Facilities” andCommitment Increase, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, "New Loan Commitments";) in an aggregate amount not in excess of to exceed the sum of:
(i) the greater of (A) $204,000,000 and (B) 100.0% of Four Quarter Consolidated EBITDA plus (ii) the aggregate amount of Indebtedness permitted to be incurred pursuant to Section 7.01(l) and, if such Indebtedness is secured, clause (25) of the definition of Permitted Liens that, in each case are unutilized and reallocated to this Cash-Capped Incremental Facility (provided, that any Indebtedness incurred pursuant to this clause (w)(ii) will reduce availability under Section 7.01(1) and, if secured, clause (25) of the definition of Permitted Liens), minus (iii) the amount of any Indebtedness previously incurred in reliance on this clause (w) as Incremental Facilities pursuant to Section 2.14, Incremental Equivalent Debt pursuant to Section 2.15, Ratio Debt, Ratio Acquisition Debt or otherwise (and not redesignated as incurred under any other provision of the Incremental Amount in accordance with this Agreement) (the "Cash-Capped Incremental Facility"),
Appears in 1 contract
Incremental Facilities. (ai) The CompanyAfter the Restatement Effective Date and before the Original Term Loan Maturity Date (with respect to Original Term Loans) and the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), or if agreed by all of as applicable, the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, may request the establishment of (x) one or more new additional tranches of term facilities denominated loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) one or more increases in Dollars the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Facilities Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Facilities Amount”) of the Incremental Loan Commitments shall not exceed $785,000,000 plus the amount of the Term Loans repaid with the proceeds of (1) Senior Unsecured 2019 Notes or (2) any Incremental Term Loans; provided further, that the Maximum Incremental Facilities Amount shall be increased by an additional $200,000,000 upon consummation of the DTA Acquisition Step 1 in accordance with the terms and conditions set forth herein, and (ii) after the Restatement Effective Date and before the Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental 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. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment and (ii) any entity providing all or a portion of the Incremental Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed).
(b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that
(i) except for any Incremental Loan Commitment in connection with the DTA Acquisition and the Tranche A Term Loans, no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments,
(ii) except for any Incremental Loan Commitment in connection with the DTA Acquisition or the Avis Europe Acquisition, the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof),
(iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans,
(iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date,
(v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments,
(vi) except for any Incremental Tranche A Term Loans, if the final maturity date of any Incremental Term Loans is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (except for any Incremental Tranche A Term Loans) (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans) that is in effect on the Increased Amount Date, and (y) the upfront fees paid to all of the Lenders in respect of theirsuch Term Loans (other than the Incremental Tranche A Term Loans), which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, suchthe Applicable Margin for thesuch Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term LoanLoans (giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for thesuch Term Loans (other than the Incremental Tranche A Term Loans) that is in effect on the Increased Amount Date, (y) the OID or upfront fees paid to all of the Lenders in respect of theirsuch Term Loans (other than the Incremental Tranche A Term Loans) and (z) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
(▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and
(viii) the Increment Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “New Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan FacilityLender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans.
(c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and/or increase and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving 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 Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (y) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Initial Term Loans, Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility.
(d) On any Increased Amount Date on which any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments Loan Commitments are effected, subject to be added to such Loans the satisfaction of the foregoing terms and conditions, (together i) each Person with any New an Incremental Term Loan FacilityCommitment (each, an “Incremental Term Facility” andLoan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, any and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments Synthetic L/C Commitment (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, Synthetic L/C Lender”; together with any Incremental Revolving Lenders and Incremental Term FacilityLoan Lenders, the “Incremental Facilities” and, the loans thereunder, Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. Notwithstanding anything in this Agreement to the contrary, (i) the references to the Term Loans in this Section 2.23 shall be deemed to include the Replacement Term Loans and (ii) the references to the Revolving Credit Loans” and, together with any Incremental Term Commitments or the Revolving Loans in this Section 2.23 shall be deemed to include the Extended Revolving Commitments or the Extended Revolving Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofas applicable.
Appears in 1 contract
Sources: Incremental Facilities Agreement (Avis Budget Group, Inc.)
Incremental Facilities. (a) The CompanyBorrowers or any Guarantor or, or if agreed by all solely in the case of a New Term Loan Facility denominated in an Alternative Currency, any Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Lenders under the applicable Incremental Facility, a Guarantor Administrative Agent (any such Guarantor, Guarantor or Restricted Subsidiary for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment of one or more new tranches of term facilities denominated in Dollars Dollars, an Alternative Currency or any other currency agreed to by the applicable Borrower, the Administrative Agent and the Lenders providing such New Term Loan Facility (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company Borrower have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofof (x) the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) and (ii) 100% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding, less any amount of Indebtedness incurred pursuant to clause (x)(i) of Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, (i) in case of Incremental Facilities that are secured on a pari passu basis with the Obligations, the First Lien Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (ii) in case of Incremental Facilities that are secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (iii) in case of Incremental Facilities that are unsecured, the Fixed Charge Coverage Ratio is greater than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Credit Facilities are fully drawn) and, in each instance, for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that Incremental Facilities (1) shall be incurred pursuant to clause (y) above prior to utilization of any capacity pursuant to clause (x) above, (2) amounts incurred in reliance on clause (x) above concurrently with amounts incurred in reliance on clause (y) above shall not be included as Indebtedness in the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, for purposes of calculating any amounts that may be incurred pursuant to clause (y) above on the same day and (3) if all or any portion of any Incremental Facility was originally incurred or issued in reliance on clause (x) above and thereafter such amount could have been incurred pursuant to clause (y) above, such amount of such Incremental Facility shall be reclassified, as the applicable Borrower may elect from time to time, as having been incurred pursuant to clause (y) above and thereafter shall not count as utilization of clause (x) above; provided, further, that, notwithstanding the foregoing or anything to the contrary set forth herein, (1) Incremental Term Loans may be incurred without regard to any of the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on or about the date of incurrence to permanently prepay and refinance Term Loans of any Tranche selected by the applicable Borrower on a dollar-for-dollar basis, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso, and (2) New Revolving Credit Facilities may be incurred without regard to the foregoing limits to the extent that such New Revolving Credit Facilities are used on or about the date of incurrence to refinance and permanently reduce Revolving Credit Commitments of any Tranche selected by Borrower on a dollar-for-dollar basis, and any such Revolving Credit Commitments thereunder (the “Refinancing Incremental Revolving Credit Commitments”) shall be deemed to have been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the applicable Incremental Facility 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 (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) and by the L/C Issuer to the extent such consent, if any, would be required under Section 11.06 for an assignment of Loans or Revolving Credit Commitments (any such Affiliate or other Person, a “New Incremental Lender”) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the amounts of such allocations and (iii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Credit Facility. Such Incremental Facility shall become effective as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Facility (except that, with respect to this clause (A), solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist), (B) both before and after giving effect to such Incremental Facility, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid (except, solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, (x) with respect to Section 5.02(a), such Incremental Facility shall only be subject to customary “funds certain provisions” and (y) with respect to Section 5.02(b), such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist); (C) any Incremental Facility provided by any New Incremental Lender shall be effected pursuant to one or more joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by a Borrower (or Additional Borrower, if applicable) and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers 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.
(b) The creation or provision of any Incremental Facility or Incremental Loan (and, in connection therewith, any amendment to the terms of this Agreement that is necessary or appropriate to implement the provisions thereof or that is favorable to the then-existing Lenders, in each case, as reasonably determined by the Administrative Agent in its sole discretion) shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment.
(c) The terms and provisions of any New Revolving Credit Facility (other than pricing, maturity and fees) shall be, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the existing Revolving Credit Facility; provided that, (i) no New Revolving Credit Facility shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date of any Tranche of Revolving Credit Loans (or, in the case of Refinancing Incremental Revolving Credit Commitments, the final maturity date of the Tranche of Revolving Credit Commitments that are being refinanced), (ii) any guarantor of any New Revolving Credit Facility shall also be a Guarantor; provided, that, in the event any New Revolving Credit Facility is incurred by a Foreign Subsidiary of ESI, such New Revolving Credit Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (iii) if secured, such New Revolving Credit Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is materially more restrictive, when taken as a whole, to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent and (iv) each New Revolving Credit Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent).
(d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Tranche B-23 Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the Tranche B-23 Term Loans, as applicable; provided that, except as otherwise set forth herein or in the joinder agreement set forth in clause (a), then (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity of the Tranche B-23 Term Loans, (or, in the case of any New Term Loans that are Refinancing Incremental Term Loans, the weighted average life to maturity of the Tranche of Term Loans that are being refinanced), (ii) the final maturity date with respect to any New Term Loans shall be no earlier than the maturity date of the Tranche B-23 Term Loans (or, in the case of any New Term Loans that are refinancing Incremental Term Loans, the final maturity date of the Tranche of Term Loans that are being refinanced), (iii) if the Yield on any New Term Loans incurred no later than 6 months after the Amendment No. 8 Funding Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Rate then in effect for any Tranche B-2 Term Loans, then the Applicable Rate then in effect for Tranche B-2 Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term Loans (and if the margins on the New Term Loans are subject to a leveraged-based pricing grid, appropriate increases to the Applicable Rates for the Tranche B-2 Term Loans, consistent with the foregoing, shall be made) (this clause (iii), the “MFN Adjustment”), (iv) any guarantor of any New Term Loan Facility shall also be a Guarantor; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (v) if secured, such New Term Loan Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is more restrictive to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (vi) each New Term Loan Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (vii) any New Term Loan Facility may be denominated in Euros or Pounds Sterling so long as (A) the borrower thereunder is a Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent and (B) such New Term Loan Facility is subject to guarantee, collateral and collateral allocation arrangements that are reasonably satisfactory to ESI and the Administrative Agent. Each joinder agreement referred to in Section 2.14(a) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, as reasonably determined by the Administrative Agent in its sole discretion, to effect the provision of this Section 2.14.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Tranche B-3 Term Loans or Initial Revolving Credit Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B-3 Term Loans or Initial Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Term SOFR Loan to be converted into a Base Rate Loan on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Term SOFR Loan, EURIBO Rate Loan or RFR Loan on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Term SOFR Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans are to be allocated to an existing Interest Period for a Term SOFR Loan or EURIBO Rate Loan then, subject to Section 2.08(b), the interest rate applicable to such Incremental Loan for
Appears in 1 contract
Incremental Facilities. (ai) The CompanyAfter the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), or if agreed by all of the Lenders under Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, may request the establishment of (x) one or more new (A) additional tranches of term facilities denominated loans or (B) increases (an “Incremental Term Loan Increase”) to an existing tranche of term loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) one or more increases in Dollars the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the proposed use of proceeds thereof, the aggregate amount (the “Maximum Facilities Amount”) of the Facilities (which term, for the avoidance of doubt, shall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed $3,000,000,000 and (ii) after the Restatement Effective Date and before the Final Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental 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. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment, (ii) any entity providing all or a portion of the Incremental Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed) and (iii) any entity providing all or a portion of the Incremental Revolving Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to each Issuing Lender (with such acceptance by the Issuing Lenders to not be unreasonably withheld or delayed).
(b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that
(i) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments,
(ii) the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments and the use of proceeds thereof (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof) and assuming any related Specified Transaction has occurred,
(iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans,
(iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date,
(v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments,
(vi) with respect to the Term Loans (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), if the final maturity date of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
(▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and
(viii) the Incremental Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “New Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Facility”) and/or increase Lender or the principal amount Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or the Incremental Synthetic L/C Lender agrees to be bound to the terms of the Initial this Agreement as a Lender. Except for Incremental Term LoansLoans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans or any Extended made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans by requesting new term loan commitments for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. Notwithstanding the foregoing, in the case of any Incremental Loan Commitments implemented to finance a Permitted Acquisition, satisfaction of the conditions set forth in clauses (i) and (ii) may, at the option of the Borrower, be added determined solely as of the date on which the definitive agreement governing such Permitted Acquisition is executed, calculated to give pro forma effect to such acquisition as if it had occurred on such date of determination.
(c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving 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 Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (together y) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility.
(d) On any New Increased Amount Date on which any Incremental Term Loan FacilityCommitments are effected, subject to the satisfaction of the foregoing terms and conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Facility” andLoan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, any and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments Synthetic L/C Commitment (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, Synthetic L/C Lender”; together with any Incremental Revolving Lenders and Incremental Term FacilityLoan Lenders, the “Incremental Facilities” and, the loans thereunder, Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Revolving Credit Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. For the avoidance of doubt, (i) the Tranche A Term Loans constitute Incremental Tranche A Term Loans” and, together with any (ii) the Tranche B Term Loans constitute Incremental Term Loans, “and (iii) the Tranche A Term Lenders shall be Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental FacilityTerm Loan Lenders, in an aggregate amount not in excess each case, for all purposes of this Agreement and the sum ofother Loan Documents.
Appears in 1 contract
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more (x) additional 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 a separate Class, collectively, the “Incremental Term B Commitments”), (y) additional commitments consisting of one or more letter of credit facilities (such commitments, collectively, the “Incremental Letter of Credit Commitments”) and/or (z) revolving credit commitments, 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 Revolving Commitments” and, together with the Additional Revolving Commitments, the “Incremental Revolving Commitments”; together with the Incremental Term B Commitments and the Incremental Letter of Credit 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 at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount 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 or a portion of the Incremental Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Commitment. In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Commitment immediately before or immediately after giving effect to such Incremental Commitment and the borrowing of any Incremental Loans thereunder, (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 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 Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, 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. 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 be designated (x) 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 and (b) 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 an Additional Revolving Commitment, a part of the series of existing Revolving Commitments subject to such increase (such new tranches or existing series of term facilities denominated in Dollars (Term B Loans or Revolving Commitments, each, a “New Series”). Notwithstanding anything to the contrary herein, Incremental Term Loan FacilityB Commitments and the Incremental Term B Loans thereunder may take the form of delayed draw term facilities.
(b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to Additional Revolving Commitments, each of the Revolving Lenders with an existing Revolving 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 an Additional Revolving Commitment of such Class (each, an “Additional Revolving Lender”), and each of such Additional Revolving Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) and/or increase a portion of such Revolving ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the percentage of the aggregate outstanding participations hereunder in such 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 all Revolving Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the Revolving 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 assumptions, the Initial Term LoansRevolving Loans of such Class will be held by existing Revolving Lenders under such Class and Additional Revolving Lenders under such Class ratably in accordance with their respective Revolving Commitments of such Class after giving effect to the addition of such Additional Revolving Commitments to such existing Revolving Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Term Loans or any Extended Term Loans by requesting new term Revolving Commitments, (i) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each loan commitments to be added to such Loans made under an Additional Revolving Commitment (together with any New Term Loan Facilityeach, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term LoansAdditional Revolving Loan”) and/or request the establishment of one or more new tranches of and each loan made under an New Revolving Credit Commitments Commitment (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit FacilityLoan” and, together with any Incremental Term Facility, “Incremental Facilities” andthe Additional Revolving Loans, the loans thereunder, “Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Loans and (ii) each Additional Revolving Lender and each Revolving Lender with a New Revolving 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 applicable Incremental Revolving Commitment and all matters relating thereto.
(c) On any Increased Amount Date on which any Incremental Term 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. 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 the related Incremental Term B Loans, in each case, effected pursuant to a Term B Increase shall be substantially identical to the terms and provisions applicable to the Class of Term B 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 the related Incremental Term B Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term B Commitments may be paid in connection with such Incremental Term B Commitments. The terms and provisions of any Incremental Term B Commitments and the related Incremental Term B Loans of any Series not effected pursuant to a Term B Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that:
(i) the applicable Incremental Term B Maturity Date of each Series shall be no earlier than the Initial Term B Maturity Date, provided, the requirements of the foregoing clause (i) 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;
(ii) the Weighted Average Life to Maturity of the applicable Incremental Term B Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term B Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term B Loans); provided, the 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 and Incremental Term B Commitments, (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term B Loans hereunder and 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 are unsecured or rank junior in right of payment or as to security with the First Lien Obligations, such Incremental Term B Loans shall participate on a junior basis with respect to mandatory repayments of Term B Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Restricted Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or, if secured by any of the Collateral, rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured by Liens on any of the Collateral, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement that reflects market terms or is otherwise reasonably satisfactory to the Borrower and the Administrative Agent, as applicable);
(iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental Term B Loans shall be determined by the Borrower and the lender(s) thereunder; provided, however, that, with respect to any Dollar-denominated, broadly syndicated, floating rate Incremental Term B Loans made under Incremental Term B Commitments that (a) is incurred on or prior to the twelve month anniversary of the Closing Date, (b) exceed the greater of (x) $255,000,000 and (y) 40% of Consolidated Adjusted EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence, (c) mature prior to the twelve month anniversary of the Term B Maturity Date and (d) rank pari passu in right of payment and security with the Initial Term B Loans, if the Yield in respect of any such Incremental Term B Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term B Loans (with original issue discount for purposes of determining such Yield to be based on original issue discount on the Closing Date) by more than 0.50%, then the Applicable ABR Margin or the Applicable Term SOFR Margin, as applicable, in respect of such Initial Term B Loans shall be adjusted so that the Yield in respect of such Initial Term B Loans is equal to the Yield in respect of such Incremental Term B Loans (with original issue discount for purposes of determining such Yield to be based on original issue discount on the Closing Date) minus 0.50% (the “Incremental LoansMFN Adjustment”); provided that no existing Lender will provided, further, to the extent any change in the Yield of the Initial Term B Loans is necessitated by this clause (iv) on the basis of an effective interest rate floor in respect of the Incremental Term B Loans, the increased Yield in the Initial Term B Loans shall (unless otherwise agreed in writing by the Borrower) have an obligation such increase in the Yield effected solely by increases in the interest rate floor(s) applicable to make the Initial Term B Loans; and
(v) all other terms of any Incremental FacilityTerm B Loans (other than as described in clauses (i), nor will (ii), (iii) and (iv) above) may differ from the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess terms of the sum ofInitial Term B Loans if reasonably satisfactory to the Borrower and the lender(s) providing such Incremental Term B Loans.
(e) The terms and provisions of any Additional Revolving Commitments and the related Additional Revolving Loans shall be substantially identical to the Class of Commitments and related Revolving Loans subject to increase by such Additional Revolving Commitments and Additional Revolving Loans; provided, that underwriting, arrangement, structuring, ticking, commitment, upfront or similar fees, and other fees payable in connection therewith that are not shared with all relevant lenders providing such Additional Revolving Commitments and related Additional Revolving Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Additional Revolving Commitments may be paid in connection with such Additional Revolving Commitments. New Revolving Commitments and New Revolving Loans shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided, further, that notwithstanding anything to the contrary in this Section 2.14 or otherwise:
(i) the Weighted Average Life to Maturity of the applicable New Revolving Commitments and New Revolving Loans shall be no shorter than the Weighted Average Life to Maturity of the Initial Revolving Loans and Revolving Commitments (without giving effect to any previous prepayments of the Initial Revolving Loans);
(ii) any such New Revolving Commitments and New Revolving Loans shall rank
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more (x) additional 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 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 then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “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 “Incremental Loan Commitments”), by an aggregate 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 at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to 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 Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide Table of Contents any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments 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, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (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 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 Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, 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 Loan Commitments, as applicable. 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 Loans made on an Increased Amount Date shall be designated (x) 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 tranches or existing series of term facilities denominated in Dollars Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”).
(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) 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 shall 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 Term Revolving Loan FacilityLender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) and/or increase 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 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 all 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 Table of Contents all such assignments and assumptions, the Initial Term Loans, any Incremental Term Revolving Credit Loans or any Extended Term Loans of such Class will be held by requesting new term loan commitments to be added to existing Revolving Credit Lenders under such Loans (together Class and New Revolving Loan Lenders under such Class ratably in accordance with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit FacilityLoan”) and/or request and each loan made under an increase in any Tranche of Additional Revolving Credit Commitments Commitment (together with any New Revolving Credit Facilityeach, an “Incremental Additional Revolving Credit FacilityLoan” and, together with any Incremental Term Facility, “Incremental Facilities” andNew Revolving Credit Loans, the loans thereunder, “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 applicable Incremental Revolving Credit Commitment and all matters relating thereto.
(c) On any Increased Amount Date (x) on which any 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 an Incremental Term C Loan Commitment (each, a “Incremental Term C Loan Lender”) of any Series shall make a term letter of credit loan to the Borrower (a “Incremental Term C Loan” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, in each case effected pursuant to a Term Loan Increase or Term C Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term 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 Loan Commitments or Incremental Term C Loan Commitments may be paid in connection with such Incremental Term Loan Commitments or Incremental Term C Loan Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related term letter of credit 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 Table of Contents collateral account. The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans of any Series not effected pursuant to a Term Loan Increase or Term C Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that:
(i) (x) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date and (y) the applicable Incremental Term C Loan Maturity Date of each Series shall be no earlier than the Initial Term C Loan Maturity Date, provided, the requirements of the foregoing clause (i) 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;
(ii) (x) the Weighted Average Life to Maturity of the applicable Incremental Term Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans) and (y) the Weighted Average Life to Maturity of the applicable Incremental Term C Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term C Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans);
(iii) the Incremental Term Loans, “Incremental Loans”)Term Loan Commitments, Incremental Term C Loans and Incremental Term C Loan Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and 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 Loans hereunder; provided that no existing Lender will have an obligation if such Incremental Term Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to make security with the First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable);
(iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental FacilityTerm Loans or Incremental Term C Loans shall be determined by the Borrower and the lender(s) thereunder; provided, nor will the Company have any obligation however, that, with respect to approach any existing Lenders to provide any Incremental FacilityTerm Loans or Incremental Term C Loans made under Incremental Term Loan Commitments or Incremental Term C Loan Commitments, if the Yield in respect of any Incremental Term Loans or Incremental Term C Loans that rank pari passu in right of payment and security with the Initial Term Loans, the Initial Term C Loans, the 2016 Incremental Term Loans and the 20162018 Incremental Term Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 20162018 Incremental Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable LIBOR Margin, as applicable, in an aggregate amount not respect of such Initial Term Loans, Initial Term C Table of Contents Loans or, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, shall be adjusted so that the Yield in excess respect of the sum ofsuch Initial Term Loans, Initial Term C Loans or, 2016 In
Appears in 1 contract
Incremental Facilities. Subject to the terms and conditions set forth herein, the Borrower shall have the right, at any time and from time to time prior to the Revolving Commitment Termination Date, to incur additional Indebtedness under this Agreement in an aggregate amount of up to $200,000,000 (each, an “Incremental Facility”) which may be borrowed in the form of (a) The Company, one or if agreed by all of more increases to the Lenders under Revolving Committed Amount (the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional BorrowerRevolving Loans”) mayand/or (b) a term loan facility (the “Additional Term Loan”; together with any Additional Revolving Loans, by written notice the “Additional Loans”), in an aggregate amount of up to $200,000,000. The following terms and conditions shall apply: (i) the aggregate amount of all Additional Loans shall not at any time exceed $200,000,000, (ii) any Additional Revolving Loans shall have the same terms as the existing Revolving Loans, (iii) the terms and conditions of any Additional Term Loans shall be reasonably satisfactory to the Administrative Agent and the Additional Loan Lenders (as such term is defined below), (iv) the loans made under any Incremental Facility shall constitute Credit Party Obligations, (v) any Additional Term Loan shall not have a shorter maturity or weighted average life than the Term Loan, and shall have other terms and conditions reasonably acceptable to the Administrative Agent, request (vi) any Additional Loans shall be entitled to the establishment same voting rights as the existing Loans and shall be entitled to receive proceeds of prepayments on the same basis as comparable Loans, (vii) the Borrower shall have received commitments from one or more new tranches of term facilities denominated existing Lenders or from other banks, financial institutions or investment funds, in Dollars each case in accordance with the terms set forth below (each, a such Persons being referred to herein as the “New Term Additional Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental LoansLenders”); provided that no existing Lender will have an obligation shall be required to make any provide a commitment with respect to such Incremental Facility, nor (viii) each Additional Loan shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof, (ix) the proceeds of any Additional Loans will be used to finance capital expenditures and working capital and other general corporate purposes, including Permitted Acquisitions, (x) the Company Borrower shall execute such promissory notes as are necessary and requested by the Additional Loan Lenders to reflect the Additional Loans, (ix) the interest rate margins with respect to any Additional Term Loan shall be determined by the Borrower and the Additional Term Loan lenders providing such Additional Term Loan, (x) the conditions to Extensions of Credit in Section 4.1(b) and (c) and Section 4.2 shall have been satisfied and (xi) the Administrative Agent shall have received from the Borrower an Officer’s Certificate, in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, after giving effect to any obligation such Additional Loan, the Borrower will be (A) in compliance with the Senior Secured Leverage Incurrence Test and (B) in pro forma compliance with all financial covenants set forth in Section 6.6. The Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to approach any the Administrative Agent to join this Credit Agreement as Lenders hereunder for a portion of the Additional Loans, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request. In the case of Additional Revolving Loans, the existing Lenders shall make such assignments (which assignments shall not be subject to provide any Incremental Facility, the requirements set forth in an aggregate amount not in excess Section 9.6(c)) of the sum ofoutstanding Revolving Loans and Participation Interests to the Additional Loan Lenders providing any Additional Revolving Loans so that, after giving effect to such assignments, each Lender holding a Revolving Commitment (including such Additional Loan Lenders) will hold Revolving Loans and Participation Interests equal to its Commitment Percentage of all outstanding Revolving Loans, Swingline Loans and LOC Obligations. Notwithstanding any provision of this Credit Agreement to the contrary, the Administrative Agent is authorized (with the consent of the Borrower and the Additional Loan Lenders), to enter into, on behalf of all Lenders, any amendment, modification or supplement to this Credit Agreement or any other Credit Document as may be necessary to incorporate the terms of any Additional Loans.
Appears in 1 contract
Sources: Credit Agreement (Pantry Inc)
Incremental Facilities. (a) The CompanyBorrowers may (on a joint and several basis), or if agreed from time to time after the Closing Date, upon notice by all of the Lenders under Borrower Representative to the Administrative Agent (who shall promptly notify the applicable Incremental Facility, a Guarantor LendersPerson appointed by the Borrower to arrange an incremental Facility (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”Person (who (i) may, by written notice to may be the Administrative Agent, 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 and the proposed currency denomination thereof, request (i) an increase in the establishment Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (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 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 tranches revolving credit facilities to the Facilities (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 (iv) the addition of one or more new term loan facilities denominated in Dollars such currency or currencies as the Borrowers identify in such notice to the Facilities (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) by an amount not to exceed the sum of (x) a Dollar Amount of $600,000,000375,000,000 (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) and/or increase so long as the principal Maximum First Lien Leverage Requirement is satisfied and (z) an amount equal to all voluntary prepayments of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”Section 2.05(a) and/or request the establishment of one or more new tranches and voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) to the extent accompanied by a corresponding, permanent reduction in the Revolving Credit Commitments pursuant to Section 2.06(a), in each case, to the extent not funded with the proceeds of long-term Indebtedness (eachexcluding, a “New for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) (the “Prepayment-Based Incremental Facility”) and/or request an increase in (such amount, at any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilitysuch time, an the “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental LoansAmount”); provided that no existing Lender will any such request for an increase shall be in a minimum amount of the lesser of (x) a Dollar Amount of $20,000,000 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 issuedEquivalent Debt incurred pursuant to Section 2.15, (A) the Borrowers shall be deemed to have an obligation used amounts under clause (z), if any, prior to make any utilization of amounts under clauses (x) and (y), and the Borrowers shall be deemed to have used amounts under clause (y) (to the extent permitted by the pro forma calculation of the First Lien Net Leverage Ratio required prior to the incurrence of such Ratio-Based Incremental Facility) prior to utilization of amounts under clause (x), nor will and (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental NotesEquivalent Debt pursuant to Section 2.15 may be incurred under both clauses (x) and (y) above, and proceeds from any such incurrence under both clauses (x), (y) and (yz) above may be utilized in a single transaction by first calculating the Company incurrence under clause (y) and then calculating the incurrence under clause (x)). At the time of sending such notice to the applicable Lenders, the Borrower Representative (in consultation with the Administrative Agent) shall specify the time period within which each applicable Lender is requested to respond(without inclusion of any amounts utilized pursuant to clause (x) or (z)).
(b) Each applicable Lender shall notify the Administrative Agent within such time period whether or not it agrees to participate in such new facility or increase of the existing Tranche and, if so, whether by a percentage of the requested increase equal to, greater than, or less than its Pro Rata Share of any then-existing Tranche. Any Lender approachedAny Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to provideparticipate in such increase or new facility. Any Lender not responding within such time period shall be deemed to have any obligation declined to approach any existing Lenders increase its Commitment with respect to such Tranche or to provide a new Tranche. The Administrative Agent shall notify the Borrowers of the Lenders’ responses to each request made under this Section 2.14. To achieve the full amount of a requested increase or issuance of New Term Facility and/or New Revolving Facility, as applicable, theThe Borrowers 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, each L/C Issuer and the Swing Line Lender (to the extent the consent of any Incremental of the foregoing would be required to assign Revolving Credit Loans to such Eligible Assignee, which consent shall not be unreasonably withheld or delayed) to become Lenders pursuant to a joinder agreement to this Agreement in form and substance reasonably satisfactory. 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.
(c) 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 Administrative AgentIncremental Arranger and 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 Administrative AgentIncremental 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 Administrative AgentIncremental 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 related 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 a writing (which may be executed and delivered by the Borrowers and the Administrative AgentIncremental 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 not 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 excess 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)) would exist after giving effect to such increase, (ii) (A) in the case of any increase of the sum Revolving Tranche, (1) the 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 (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 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 of, any other outstanding Term Loans, New Term Loans or Specified Refinancing Term Loans, as applicable; provided, that Extendable Bridge Loans and Specified New Term Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and, with respect to Extendable Bridge Loans and the Specified New Term Loans, 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 the Specified New Term Loans, 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 All-in Yield and as set forth in subclause (D) above with respect to final maturity and Weighted Average Life to Maturity, or otherwise as shall be reasonably satisfactory to the Administrative Agentagreed with the Incremental Arranger in the documentation relating to such New Term Facility or New Revolving Facility, any such New Term Facility or New Revolving Facility shall have the same terms as the Term Facility or Revolving Credit Facility, respectivelyterms reasonably satisfactory to the Incremental Arranger; provided, that (x) to the extent such terms are more favorable to the existing Lenders than comparable terms existing in the Loan Documents, such terms may be, as determined by the Borrowers in consultation with the Administrative Agent, incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable 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 and (y) otherwise, may be incorporated if reasonably satisfactory to the Borrower, the Incremental Arranger and the Administrative Agent, and (iv) to the extent reasonably requested by the Administrative Agent, the Administrative AgentIncremental Arranger, the Incremental Arranger shall have received legal opinions, resolutions, officers’ certificates and/or reaffirmation
Appears in 1 contract
Sources: Second Amendment (Ortho Clinical Diagnostics Holdings PLC)
Incremental Facilities. (a) The CompanyAt any time and from time to time, or if agreed by all of subject to the Lenders under terms and conditions set forth herein, the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) Borrower may, by written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request the establishment of to incur additional Senior Lien Term Loans or add one or more new additional tranches of term facilities denominated in Dollars loans, which may be secured on a junior or pari passu basis or unsecured (each, a the “New Other Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any additional Senior Lien Term Loans incurred pursuant to this Section 2.23, the “Incremental Facilities”; the loans thereunder, the “Incremental Term Loans”). Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate amount of the Incremental Facilities shall not exceed, at any time, the sum of (i) the sum of (any such Incremental Facility and any Incremental Equivalent Debt (“Incremental Debt”), in each case to the extent incurred under this clause (i), “Dollar Basket Incremental Debt”) (x) the greater of $285.0 million and Consolidated EBITDA for the Relevant Reference Period plus (y) the aggregate amount of all voluntary prepayments of (A) the Term Loans pursuant to Section 2.12 and (B) all other Incremental Debt, in each case made prior to the date of incurrence of such Incremental Debt (other than in connection with any refinancing of such Term Loans or other Incremental Debt) plus (ii) an unlimited amount (any such Incremental Debt, in each case to the extent incurred under this clause (ii), “Ratio-Based Incremental Debt”) so long as, in the case of this clause (ii), upon the effectiveness of the relevant Incremental Facility Amendment or the relevant documentation relating to other Incremental Debt, as the case may be, (x) in the case of an Incremental Debt that is secured by a Lien on the Collateral that is pari passu with the Liens securing the Senior Lien Term Loan Facility, the First Lien Leverage Ratio does not exceed 4.10:1.00, (y) in the case of Incremental Debt that is secured by a Lien on the Collateral that is junior to the Liens securing the Senior Lien Term Loan Facility, the Total Leverage Ratio does not exceed 5.50:1.00 and (z) in the case of Incremental Debt that is unsecured, the Total Leverage Ratio does not exceed 5.75:1.00, in each case, determined on a Pro Forma Basis (after giving effect to any Pro Forma Transaction, including any acquisition consummated with the proceeds of such Incremental Debt); provided that, (i) when calculating the First Lien Leverage Ratio or the Total Leverage Ratio for purposes of the incurrence of Ratio-Based Incremental Debt, the First Lien Leverage Ratio or the Total Leverage Ratio, as applicable, shall be determined without netting the proceeds from the incurrence of such Ratio-Based Incremental Debt (it being understood, for the avoidance of doubt, that such proceeds, to the extent constituting cash or Cash Equivalents, may be netted for subsequent determinations of the First Lien Leverage Ratio and the Total Leverage Ratio) and (ii) any Dollar Basket Incremental Debt incurred substantially concurrently with any Ratio-Based Incremental Debt shall not be included for purposes of calculating the First Lien Leverage Ratio or the Total Leverage Ratio, as the case may be, in connection with the incurrence of such Ratio-Based Incremental Debt. Unless elected otherwise by the Borrower, any Incremental Debt shall be deemed to have been incurred first, in reliance on clause (ii) above to the extent thereof, and second, in reliance on clause (i) above to the extent thereof. Any Incremental Debt (or any relevant portion thereof) incurred as a Dollar Basket Incremental Debt will be automatically reclassified as being Ratio-Based Incremental Debt upon achievement of the applicable First Lien Leverage Ratio and the applicable Total Leverage Ratio, as the case may be, determined as if such Incremental Debt (or any relevant portion thereof) constituted Ratio-Based Incremental Debt and otherwise on a Pro Forma Basis (after giving effect to any Pro Forma Transaction, including any acquisition consummated with the proceeds of such Incremental Debt). All Incremental Term Loans shall be in an integral multiple of $1.0 million and in an aggregate principal amount that is not less than $5.0 million (or in such lesser minimum amount agreed by the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed); 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.
(b) Any Other Term Loans (i) shall rank pari passu or junior in right of payment and pari passu or junior in priority of security with the Obligations in respect of the other outstanding Term Loans or may be unsecured, in each case as set forth in the relevant Incremental Facility Amendment (which shall be reasonably satisfactory to the Administrative Agent) and shall not be guaranteed by any Subsidiary that is not also a Guarantor, (ii) for purposes of prepayments, shall be treated substantially the same as (or, to the extent set forth in the relevant Incremental Facility Amendment, less favorably than) the other outstanding Term Loans and (iii) other than amortization, maturity date, conditions precedent and pricing (including interest rate, fees, funding discounts and prepayment premiums) (as set forth in the relevant Incremental Facility Amendment) and, to the extent permitted pursuant to clause (i) above, ranking of right of payment and/or security, shall have the same terms as the Senior Lien Term Loans or such terms that are, when taken as a whole, not materially more favorable (as reasonably determined by the Borrower in good faith) to the investors or lenders providing such Other Term Loans than the terms and conditions, taken as a whole, applicable to the then existing Term Loans (except with respect to covenants (including any financial maintenance covenant added for the benefit of lenders providing such Other Term Loans) and other provisions so long as such covenants or other provisions (1) are also added for the benefit of the Lenders of all then outstanding Term Loans or (2) only become applicable after the Latest Maturity Date of the then outstanding Term Loans at the time of such incurrence of such Other Term Loans); provided, that (A) in respect of any Other Term Loans secured on a pari passu basis with the Obligations that are incurred within twelve (12) months of the Closing Date, if the effective yield (which, for such purpose only, shall be deemed to take account of interest rate margin and any then applicable benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (1) the weighted average life of such Other Term Loans and (2) four years) payable to all Lenders providing such Other Term Loans (but excluding any bona fide arrangement, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all Lenders (in their capacity as such) providing such Other Term Loans)) on such Other Term Loans determined as of the initial funding date for such Other Term Loans exceeds the effective yield (determined on same basis as the preceding parenthetical) on the Senior Lien Term Loans or any then-existing Incremental Term Loans that are secured on a pari passu basis with the Obligations (“Pari Passu Incremental Term Loans”), as applicable, immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the Senior Lien Term Loans or such then existing Pari Passu Incremental Term Loans, as applicable, shall be adjusted and/or the Borrower will pay additional fees to Lenders holding Senior Lien Term Loans or such then existing Pari Passu Incremental Term Loans, as applicable, in order that such effective yield on such Other Term Loans shall not exceed such effective yield on the Senior Lien Term Loans or such then existing Pari Passu Incremental Term Loans by more than 0.50% (provided, that if such adjustment is required due to the application of a higher interest rate benchmark floor on such Other Term Loans, such adjustment shall be effected solely through an increase in the interest rate benchmark floor of the Senior Lien Term Loans or such then existing Pari Passu Incremental Term Loans, as applicable (or if no interest rate benchmark floor applies to the Senior Lien Term Loans or such then existing Pari Passu Incremental Term Loans, as applicable, at such time, an interest rate benchmark floor shall be added)), (B) any Other Term Loans shall not have a final maturity date earlier than the then Latest Maturity Date of the then remaining Senior Lien Term Loans or then existing Pari Passu Incremental Term Loans and (C) any Other Term Loans shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the later of the then remaining Senior Lien Term Loans or then existing Incremental Term Loans, as applicable (determined, solely for the purposes of this clause (C), without giving effect to prepayments that reduced amortization of the then remaining Senior Lien Term Loans). Any Pari Passu Incremental Term Loans that are not Other Term Loans shall be on terms identical to the Senior Lien Term Loans and, for the avoidance of doubt, such Incremental Term Loans shall be deemed a Senior Lien Term Loan pursuant to the applicable Incremental Facility Amendment.
(c) Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans; provided, that any notice for Incremental Term Loans shall specify whether the Incremental Term Loans will be incurred in the form of additional Senior Lien Term Loans or Other Term Loans and whether they will rank pari passu with, or junior in right of payment to, and pari passu with, or junior in priority of security to, the Obligations in respect of the other outstanding Term Loans or will be unsecured. Any Additional Lenders that elect to extend Incremental Term Loans shall be reasonably satisfactory to the Borrower, and (unless such Additional Lender is already a Lender or an Affiliate of a Lender) the Administrative Agent (in each case, any approval thereof not to be unreasonably withheld, delayed or conditioned), and, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental LoansFacility Amendment”); provided that no ) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender or Additional Lenders and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders or any other Person other than the Borrower, the Administrative Agent and the Additional Lenders with respect to such Incremental Facility Amendment. The Lenders hereby irrevocably authorize the Administrative Agent to enter into Incremental Facility Amendments and, as appropriate, amendments to the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches in respect of the existing Lender will have an obligation Term Loans and such other amendments as may be necessary or appropriate in the opinion of the Administrative Agent and the Borrower to make any effect the provisions of this Section 2.23 (including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b) and including, for the avoidance of doubt, to provide for and reflect junior ranking in right of payment and/or junior priority in respect of Liens on Collateral, or the unsecured nature of such Incremental Facility, nor will the Company have any obligation as applicable and as permitted pursuant to approach any existing Lenders this Section 2.23). No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. Commitments in respect of any Incremental Term Loans shall become Commitments under this Agreement. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders party thereto, be subject to (i) the payment in full of all fees and expenses owing to the Administrative Agent and the Lenders in respect of such Incremental Facility, to the extent invoiced prior to such date, and (ii) the satisfaction or waiver on the date thereof (each, an “Incremental Facility Closing Date”) of (x) the representations and warranties made by any Loan Party in or pursuant to the Loan Documents being true and correct in all material respects on and as of Incremental Facility Closing Date as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (provided, that in each case such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified by materiality or “Material Adverse Effect”; provided, further, that, in connection with the incurrence of any Limited Conditionality Incremental Transaction, then (x) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be (A) the Specified Representations and (B) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that Holdings (or any Subsidiary of Holdings) has the right to terminate the obligations of Holdings or such Subsidiary under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and (y) no Default or Event of Default (or, in the case of any Limited Conditionality Incremental Transaction, and to the extent agreed to by the lenders and other investors providing such Incremental Facilities, no Specified Event of Default) having occurred and being continuing on the Incremental Facility Closing Date or after giving effect to the Incremental Facility requested to be made on such date. To the extent reasonably requested by the Administrative Agent, the effectiveness of an Incremental Facility Amendment may be conditioned on the Administrative Agent’s receipt of customary legal opinions with respect thereto, board resolutions and officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.1, with respect to Holdings and the Restricted Subsidiaries. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3 required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
(d) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, subject to providing notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), issue one or more series of Incremental Equivalent Debt in an aggregate outstanding principal amount not in excess to exceed, as of the sum ofdate of the issuance of any such Incremental Equivalent Debt, the aggregate amount of Incremental Facilities then permitted to be incurred under Section 2.23(a); provided, that solely in respect of any Incremental Equivalent Debt constituting term loans secured on a pari passu basis with the Obligations that are incurred within twelve (12) months of the Closing Date, if the effective yield (which, for such purpose only, shall be deemed to take account of interest rate margin and any then applicable benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (1) the weighted average l
Appears in 1 contract
Sources: Senior Lien Term Loan Credit Agreement (Forterra, Inc.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so So long as loans no Event of Default under Subsection 9.1 (a) or (f) exists or would arise therefrom, the Borrower Representative shall have the right, at any time and from time to time after the Closing Date, (i) to request new term loan commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment of one or more new tranches of term loan credit facilities denominated to be included in Dollars this Agreement (each, a the “New Incremental Term Loan FacilityCommitments”), (ii) and/or to increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Existing Term Loans by requesting new term loan commitments to be added to such an Existing Tranche of Term Loans (together with any New the “Supplemental Term Loan FacilityCommitments”), an “Incremental Term Facility” and, any Loans made pursuant (iii) to increase the Existing Revolving Commitments by requesting new Revolving Loan Commitments be added to an Incremental Term Facility Existing Tranche of Existing Revolving Commitments (including any New Term Loansthe “Supplemental Revolving Commitments”), “Incremental Term Loans”(iv) and/or to request the establishment of new commitments under one or more new tranches of Revolving Credit Commitments revolving facilities to be included in this Agreement (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an the “Incremental Revolving Commitments”), and (v) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit FacilityCommitments” and, together with any the Incremental Term FacilityLoan Commitments, Supplemental Term Loan Commitments, Supplemental Revolving Commitments and the Incremental Revolving Commitments, the “Incremental FacilitiesCommitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness to refinancing other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with Subsection 8.1(b)(i), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount,” andthe Borrower Representative shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test) and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount,” the Borrower Representative shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment. Any loans thereundermade in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be made in Dollars, Euro, Sterling and such other currencies as mutually agreed by the Parent Borrower and the lenders thereunder and shall be in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof (in the case of Incremental Commitments denominated in Dollars) or in a minimum aggregate amount of at least €10,000,000 and in integral multiples of €5,000,000 in excess thereof (in the case of Incremental Commitments denominated in Euro) (or, in each case, in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(b) Each request from the Borrower Representative pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Incremental Revolving Credit LoansLender,” and, and the Additional Incremental Lenders together with any existing Lender providing Incremental Term LoansCommitments, the “Incremental LoansLenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent and (in the case of a Supplemental Revolving Commitment) the consent of any Issuing Bank (in each case, such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or Revolving Commitments to be increased, executed by the Borrower Representative and each increasing Lender substantially in the form attached hereto as Exhibit I-1 (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit I-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower Representative and the Administrative Agent, to effect the provisions of this Subsection 2.8; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Parent Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower Representative’s option) junior basis by the same Collateral securing the First Lien Loan Document Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement, the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower Representative’s option) junior to the First Lien Loan Document Obligations and (C) no existing Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the First Lien Loan Document Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event or from Excess Cash Flow, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans pursuant to Subsection 4.4(e), on more than a ratable basis with the Initial Term Loans (after giving effect to any amendment in accordance with Subsection 11.1(d)(vii)); (ii) no Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders be required to provide any such Incremental FacilityCommitment unless it so agrees; (iii) the maturity date of any Incremental Revolving Commitment shall be no earlier than, and no scheduled mandatory commitment reduction in respect thereof shall be required prior to the Initial Revolving Maturity Date; (iv) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable); (v) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower Representative and the applicable Incremental Lenders; provided that in the event that the applicable interest rate margins for any term loans Incurred by the Borrowers under any Incremental Term Loan Commitment, made on or prior to the 18-month anniversary of the Closing Date, are higher than the applicable interest rate margin for the Initial Dollar Term Loans (in the case of term loans denominated Dollars) or the Initial Euro Term Loans (in the case of term loans denominated in Euro) by more than 50 basis points, then the Applicable Margin for the applicable Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such Initial Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the applicable Initial Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrowers to the Lenders under such Initial Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an aggregate assumed four-year life to maturity) (provided that, if such Initial Term Loans are issued in a manner such that all such Initial Term Loans were not issued with a uniform amount of OID or upfront fees within the Tranche of Initial Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term Loans shall be determined on a weighted average basis); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Incremental Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the applicable Initial Term Loans that became effective subsequent to the Closing Date but prior to the time of such Incremental Term Loans shall also be included in excess such calculations and (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the applicable Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the sum ofApplicable Margin for such Initial Term Loans shall be required, to the extent an increase in the interest rate floor for such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to such Initial Term Loans shall be increased by such amount; (vi) such Incremental Commitment Amendment may
Appears in 1 contract
Incremental Facilities. (a) The CompanyAt any time or from time to time on or after the SecondThird Amendment Effective Date, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative AgentAgent elect to request (i) prior to the Maturity Date of the applicable Revolving Credit Facility, request one additional revolving credit facility tranche (“New Revolving Credit Commitments”) or one or more increases to the existingTranche A Revolving Credit Commitments or the NewTranche B Revolving Credit Commitments (any such increase in commitments, the “Increased Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”) and/or (ii) prior to the Maturity Date of the Term B Loan Facility, the establishment of one or more new tranches term loan commitments (the “New Term Commitments” and, together with the New Revolving Credit Commitments and the IncreasedIncremental Revolving Credit Commitments, the “Incremental Commitments”) which may be of the same Class as existing Term Loans or a separate Class of new term facilities denominated loans; provided that, (x) the aggregate principal amount of all such Incremental Commitments shall not exceed (A) in Dollars the case of any Incremental Revolving Credit Commitments, $135,000,000; provided that the sum of the Incremental Revolving Credit Commitments plus the Existing Revolving Credit Commitments then in effect shall not exceed $155,000,000, plus (B) in the case of both the Incremental Revolving Credit Commitments and the New Term Commitments, $75,000,000, plus (CB) after the full utilization of the amounts available under clause (A) above, in the case of the Incremental Revolving Credit Commitments, and clause (B) above, in the case of both the Incremental Revolving Credit Commitments and the New Term Commitments, an additional amount of Incremental Revolving Credit Commitments and/or New Term Commitments so long as in the case of this clause (CB), the Senior Secured Leverage Ratio shall not exceed 2.75:1.00 as of the end of the Test Period most recently ended, both before and after giving Pro Forma Effect to such IncreasedIncremental Revolving Credit Commitments or New Term Loans (assuming a borrowing of the maximum amount of Loans available under the Revolving Credit Commitments and any Incremental Revolving Credit Commitments after giving effect to such Incremental Revolving Credit Commitment and any Incremental Revolving Credit Commitments previously made pursuant to this Section 2.14 and excluding, for purposes of determining Consolidated Total Debt, the cash proceeds from the borrowing of the proposed Incremental Revolving Credit Commitments or New Term Loans) and (y) any such request shall be for an aggregate principal amount of Incremental Commitments that is not less than $5,000,000 (or such lesser amount which shall be approved by Administrative Agent or such lesser amount that shall constitute the difference between the maximum aggregate principal amount of Incremental Commitments indicated above and all such Incremental Commitments obtained prior to such date) and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (i) the date (each, a an “New Term Loan FacilityIncreased Amount Date”) and/or increase on which the principal amount Borrower proposes that the applicable Incremental Commitments shall be effective, which shall be a US_ACTIVE:\44299297\214\35899.0483 date not less than fifteen (15) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as shall be reasonably acceptable to the Administrative Agent) and (ii) the identity of the Initial Term Loans, any Incremental Term Loans each Lender or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, other Person that is an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments Eligible Assignee (each, a “New Revolving Credit FacilityLender” or “New Term Lender”, as applicable) and/or request an increase in to whom the Borrower proposes any Tranche portion of such Incremental Revolving Credit Commitments (together with any or New Revolving Credit FacilityTerm Commitments, an “Incremental Revolving Credit Facility” andas applicable, together with any Incremental Term Facility, “Incremental Facilities” and, be allocated and the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”)amounts of such allocations; provided that no the Borrower shall first approach each existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental FacilityCommitment, which Lender may elect or decline, in an aggregate amount not in excess its sole discretion, to provide all or any portion of such requested Incremental Commitment. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that, (1) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments; (2) after giving effect to the making of any New Term Loans or effectiveness of any Incremental Revolving Credit Commitments, each of the sum ofconditions set forth in Section 4.02 shall be satisfied; (3) the Incremental Revolving Credit Commitments or New Term Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and Administrative Agent, and each of which shall be recorded in the Register, and each New Revolving Credit Lender and New Term Lender shall be subject to the requirements set forth in Section 10.15; (4) the Borrower shall make any payments required pursuant to Section 3.05 in connection with the Incremental Commitments, if applicable; and (5) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction.
Appears in 1 contract
Incremental Facilities. (a) Parent Borrower shall have the right, but not the obligation, after the later of (i) the date on which a Successful Syndication occurs or (ii) the Closing Date, upon notice to the Administrative Agent (an “Incremental Borrowing Notice”), to request (A) additional term loans to be made pursuant to one or more additional tranches of term loans under this Agreement (the “Incremental Term Loan Facilities”), and/or (B) one or more increases in the aggregate commitments under the Initial Revolving Facility (each, an “Incremental Revolving Increase”) (which may, with respect to any Incremental Revolving Increase, at the election of Parent Borrower and with the consent of the LC Issuer, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender, the Swing Line Commitment) (each, an “Incremental Initial Revolving Facility,” the loans thereunder, the “Incremental Initial Revolving Loans”) (and each of the foregoing, an “Incremental Facility” and collectively, the “Incremental Facilities”), in each case, in an aggregate amount of up to (x) $50,000,000 minus the aggregate amount of Indebtedness incurred previously in reliance on this clause (x) and in reliance on clause (a)(x) of the definition of “Permitted Incremental Indebtedness,” plus (y) unlimited additional amounts so long as after giving effect to the incurrence of the Loans in respect of such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments (assuming the full amount thereof is drawn) and/or Permitted Incremental Indebtedness incurred under Section 7.03(v) and after giving effect to any Specified Transaction that may be consummated in connection therewith, the Secured Net Leverage Ratio (calculated on a Pro Forma Basis and provided that (I) all Permitted Incremental Indebtedness incurred under Section 7.03(v) shall also be included in such calculation for this purpose, whether or not it would otherwise be included and (II) the proceeds of the Incremental Facility being incurred shall not be netted against indebtedness for purposes of the calculation relating to such incurrence) shall not be greater than 3.00 to 1.00; provided that:
(1) no commitment of any Lender may be increased without the consent of such Lender;
(2) at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below (A) no Event of Default exists after giving effect thereto; provided, however, that if the proceeds of such Incremental Facilities are used to finance a Permitted Acquisition or other Investment permitted by this Agreement (and costs reasonably related thereto), it shall only be required that no Specified Event of Default shall be continuing at the time of incurrence or would result therefrom and (B) all representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects (except for (I) representations and warranties which expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date and (II) representations and warranties qualified by materiality, which shall be true and correct in all respects); provided that, if otherwise agreed to by the Lenders providing any Incremental Facility the proceeds of which are to be used to finance a Permitted Acquisition or other Investment (other than an intercompany Investment) permitted by this Agreement such requirements in this clause (B) shall be deemed to refer solely to, the Specified Representations and the Specified Purchase Agreement Representations, which shall be true and correct in all material respects (except for (I) representations and warranties which expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date and (II) representations and warranties qualified by materiality, which shall be true and correct in all respects);
(3) any such Incremental Facility shall (x) rank pari passu or junior in right of payment with the Initial Facilities, (y) only benefit from guarantees that also guarantee the Initial Facilities and (z) be secured on a pari passu or junior basis by the Collateral or be unsecured (in which case, the Incremental Term Loan Facility pursuant to which the such Incremental Term Loans are extended will be established as a separate facility from the then existing Initial Term Loan Facility); provided that any Incremental Facility that ranks junior in right of payment or security with the Initial Term Loan Facility shall be subject to a Customary Intercreditor Agreement or otherwise subject to intercreditor arrangements that are reasonably satisfactory to the Administrative Agent;
(4) any Incremental Facility that is an Incremental Revolving Increase shall be on the same terms and pursuant to the same documentation as the Initial Revolving Commitment;
(5) the yield applicable to any Incremental Initial Revolving Facility shall be equal to the corresponding yield on the Initial Revolving Facility (calculated for such Incremental Initial Revolving Facility and Initial Revolving Facility inclusive of any original issue discount and/or upfront fee percentage paid to all Lenders, but exclusive of any arrangement, underwriting or similar fees); provided, that Parent Borrower may increase the pricing of the Initial Revolving Facility, without the consent of the Administrative Agent or any Lender, such that the foregoing is true, including increasing the Applicable Margin, the Commitment Fee, adding or increasing an existing Eurodollar floor (if applicable), and paying additional original issue discount and/or upfront fees;
(6) in the case of a new Class of Incremental Term Loans under an Incremental Term Loan Facility, the All-In Yield applicable to such Incremental Term Loans shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Initial Term Loans, plus fifty (50) basis points per annum unless the interest rate (together with, as provided in the proviso below, the Eurodollar or Base Rate floor) with respect to the Initial Term Loans is increased so as to cause the then applicable All-In Yield under this Agreement on the Initial Term Loans to equal the All-In Yield then applicable to the Incremental Term Loans, minus fifty (50) points; provided if such Incremental Term Loan includes an Eurodollar Rate floor greater than 1.00% per annum or a Base Rate floor greater than 2.00% per annum, such differential between the Eurodollar Rate or Base Rate floors shall be equated to the applicable All-In Yield for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the Eurodollar Rate or Base Rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the Eurodollar Rate or Base Rate floor (but not the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such differential between the Eurodollar Rate or Base Rate floors;
(7) (A) the maturity of any Incremental Term Loan Facility shall not be earlier than the Latest Maturity Date of the Initial Term Loans and (B) the Weighted Average Life to Maturity of any Incremental Term Loan Facility shall not be shorter than that of the Initial Term Loan Facility;
(8) the Incremental Term Loan Facilities may 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 with other then outstanding Initial Term Loans;
(9) the covenants, events of default and guarantees of such Incremental Term Loan Facility may differ from the terms of the corresponding Initial Term Loan Facility; provided that the terms that are not substantially identical to the corresponding Initial Term Loan Facility (other than pursuant to the foregoing clauses (1) through (8) above), (A) shall be as mutually agreed upon between Parent Borrower and lenders providing such Incremental Term Loan Facility and reasonably satisfactory to the Administrative Agent and (B) shall not be more restrictive to Parent Borrower or any other Borrower, when taken as a whole, than the terms of the corresponding Initial Term Loan Facility unless (1) Lenders under the corresponding Initial Term Loan Facility also receive the benefit of such more restrictive terms (without any consent being required) or (2) any such provisions apply after the Latest Maturity Date of the corresponding Initial Term Loan Facility; and
(10) Incremental Term Loan Facilities shall be requested in minimum amounts of $2,500,000 or a higher multiple of $1,000,000 and (y) Incremental Revolving Increases shall be requested in minimum amounts of $1,000,000 or a higher multiple of $1,000,000.
(b) The Companyproceeds of each Incremental Facility may be used for any purpose not prohibited by this Agreement and as agreed to by the Parent Borrower and the lenders providing such Incremental Facility.
(c) The commitments in respect of any Incremental Facilities may be denominated in U.S. Dollars and/or other currencies as agreed among Parent Borrower, the Administrative Agent and the lenders providing such Incremental Facilities. Each Incremental Borrowing Notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Credit Commitments being requested, (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than five (5) Business Days nor more than sixty (60) days after the date of Incremental Borrowing Notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments, if any, are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(d) Any Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and Additional Lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. Commitments in respect of Incremental Facilities shall become Commitments (or in the case of an Incremental Revolving Increase to be provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment), under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parent Borrower, any Additional Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent, each LC Issuer and the Swing Line Lender shall have consented to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if any such consent would be required under Section 10.12(b) for an assignment of Loans or Revolving Commitments, as applicable, to such Lender or Additional Lender. Each Incremental Amendment shall specify the terms of the Incremental Term Loans or Incremental Initial Revolving Loans, as applicable, to be made thereunder, consistent with the provisions set forth in this Section 2.16. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, the Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower, to effect the provisions of this Section 2.16, notwithstanding any requirements of Section 10.12 (including, in the case of Incremental Term Loans structured as a separate Class, the incorporation of class voting rights that prevent Lenders from agreeing to modifications that would allocate (or reallocate) payments to the Lenders in a non-pro rata manner unless such modifications are agreed to by all of the Lenders under holding the applicable Loans or Incremental FacilityTerm Loans or Incremental Revolving Credit Commitments whose payment rights are being modified).
(e) Upon each Incremental Revolving Increase, each Lender with a Guarantor Revolving 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 Increase (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facilityeach, an “Additional BorrowerIncremental Initial Revolving Facility Lender”) mayin respect of such increase, and each such Incremental Initial Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving 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 Swing Loans held by written notice each Lender with a Revolving Commitment of such Class (including each such Incremental Initial Revolving Facility Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.04. 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.
(f) Notwithstanding the foregoing, no Incremental Amendment shall become effective under this Section 2.16 unless the Administrative Agent shall have received (i) a customary legal opinion covering the enforceability of the Incremental Amendment and other customary matters, (ii) customary reaffirmations and/or such amendments to the Security Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or the Incremental Initial Revolving Loans, as applicable, are provided with the benefit of the applicable Loan Documents and (iii) board resolutions and other closing certificates and documentation to the extent reasonably requested by the Administrative Agent, request the establishment of one or more new tranches of term facilities denominated in Dollars .
(each, a “New Term Loan Facility”g) and/or increase the principal amount Each of the Initial parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrowers agree that Section 3.04 shall apply to any conversion of Eurodollar Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans or any Extended are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans by requesting new term loan commitments shall be ratably increased to be added to account for the aggregate principal amount of such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”.
(h) and/or request This Section 2.16 shall supersede any provisions in Section 2.14 or 10.12 to the establishment contrary. For the avoidance of one or more new tranches of Revolving Credit Commitments (eachdoubt, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofprovisions of this Section 2.16 may be amende
Appears in 1 contract
Sources: Credit Agreement (PGT, Inc.)
Incremental Facilities. (a) The CompanyBorrowers may (on a joint and several basis), or if agreed from time to time after the Closing Date, upon notice by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice Borrower Representative to the Administrative AgentAgent (who shall promptly notify the applicable Lenders) specifying the proposed amount thereof, request (i) an increase in the establishment Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (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 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 tranches revolving credit facilities to the Facilities (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 (iv) the addition of one or more new term loan facilities denominated in Dollars such currency or currencies as the Borrowers identify in such notice to the Facilities (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) by an amount not to exceed the sum of (x) a Dollar Amount of $600,000,000 (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) and/or increase so long as the principal Maximum First Lien Leverage Requirement is satisfied and (z) an amount equal to all voluntary prepayments of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to Section 2.05(a) and voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) to the extent accompanied by a corresponding, permanent reduction in the Revolving Credit Commitments pursuant to Section 2.06(a) (the “Prepayment-Based Incremental Facility”) (such amount, 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) a Dollar Amount of $20,000,000 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) the Borrowers shall be deemed to have used amounts under clause (z), if any, prior to utilization of amounts under clauses (x) and (y), and the Borrowers shall be deemed to have used amounts under clause (y) (to the extent permitted by the pro forma calculation of the First Lien Net Leverage Ratio required prior to the incurrence of such Ratio-Based Incremental Facility) prior to utilization of amounts under clause (x), and (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under both clauses (x) and (y) above, and proceeds from any such incurrence under both clauses (x) and (y) above may be utilized in a single transaction by first calculating the incurrence under clause (y) and then calculating the incurrence under clause (x)). At the time of sending such notice to the applicable Lenders, the Borrower Representative (in consultation with the Administrative Agent) shall specify the time period within which each applicable Lender is requested to respond (which, unless the Administrative Agent otherwise agrees, shall in no event be less than ten Business Days from the date of delivery of such notice).
(b) Each applicable Lender shall notify the Administrative Agent within such time period whether or not it agrees to participate in such new facility or increase of the existing Tranche and, if so, whether by a percentage of the requested increase equal to, greater than, or less than its Pro Rata Share of any then-existing Tranche. Any Lender approached may elect or decline, in its sole discretion, to provide such increase or new facility. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment with respect to such Tranche or to provide a new Tranche. The Administrative Agent shall notify the Borrowers of the Lenders’ responses to each request made under this Section 2.14. To achieve the full amount of a requested increase or issuance of New Term Facility and/or New Revolving Facility, as applicable, the Borrowers may also invite additional Eligible Assignees reasonably satisfactory to the Administrative Agent, each L/C Issuer and the Swing Line Lender (including 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 or delayed) to become Lenders pursuant to a joinder agreement to this Agreement in form and substance reasonably satisfactory to the Administrative Agent.
(c) 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 Administrative Agent and 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 Administrative Agent 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 Administrative Agent) 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, 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 executed and delivered by the Borrowers and the Administrative Agent) 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 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 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 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 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 of, any other outstanding Term Loans, New Term Loans or Specified Refinancing Term Loans, as applicable, and (D) in the case of any New Term LoansFacility, 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 All-in Yield and as set forth in subclause (D) above with respect to final maturity and Weighted Average Life to Maturity, or otherwise as shall be reasonably satisfactory to the Administrative Agent, any such New Term Facility or New Revolving Facility shall have the same terms as the Term Facility or Revolving Credit Facility, respectively, and (iv) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received legal opinions, resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 or delivered from time to time pursuant to Section 6.12, 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 local counsel to the Administrative Agent in such jurisdiction advises that such deliveries are reasonably necessary to preserve the Collateral in such jurisdiction (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). Notwithstanding 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 Administrative Agent and the Borrowers; provided, further, in connection with the incurrence of any New Loan Commitment, if the proceeds of such New Loan Commitment are, substantially concurrently with the receipt thereof, to be used, in whole or in part, by the Borrowers or any other Loan Party to finance, in whole or in part, a Permitted Investment or an Investment permitted under Section 7.05, then, to the extent agreed to by the lenders providing such New Loan Commitment, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Increase Effective Date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that Holdings or the Borrowers (or any Affiliate of Holdings or the Borrowers) has the right to terminate the obligations of Holdings, the Borrowers or such Affiliate under such acquisition agreement or not consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement and (B) any other express requirements shall be limited to customary “certain funds” requirements as mutually agreed to by the lenders providing such Incremental Term LoansFacilities (“Permitted Acquisition Provisions”).
(e) and/or request On the establishment Increase Effective Date with respect to a Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase or incurrence will automatically and without further act be deemed to have assigned to each Lender providing a portion of one or more new tranches of the increase to the Revolving Credit Commitments (each, a “New 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 Facility”Lender’s participations hereunder in outstanding L/C Advances and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) and/or request an increase participations hereunder in L/C Advances and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Tranche 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 Commitments Loans made hereunder (together 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 each Lender under such Term Loan Tranche will participate proportionately in each then outstanding Borrowing of Term Loans under the Term Loan Tranche.
(f) (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment, have no more guarantees as, and be unsecured, secured either on a first lien “equal and ratable” basis with the other Facilities or on a “junior” basis, in each case over the same (or less) Collateral that secures the Facilities (and in each case, the application of any proceeds of the Collateral securing such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Administrative Agent; provided that the foregoing shall in any event be subject to the Guaranty and Security Principles, (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 Facility, an “Incremental 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 Facility” andLoans, together as applicable, and (iii) with respect to any Incremental New Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental All-in Yield 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 50 basis points higher than the corresponding All-in Yield for the Initial Term Loans, “Incremental Loans”); provided unless the All-in Yield with respect to the Initial Term Loans is increased to the amount necessary so that no existing Lender will have an obligation the difference between the All-in Yield with respect to make any Incremental Facility, nor will such New Term Facility and the Company have any obligation corresponding All-in Yield on the Initial Term Loans is equal to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum of50 basis points.
Appears in 1 contract
Sources: Credit Agreement (Ortho Clinical Diagnostics Holdings PLC)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written Upon notice to the Administrative AgentAgent (which shall promptly notify the Lenders), request the establishment of Borrower may from time to time add one or more new tranches of term loan facilities denominated in Dollars (each, a each an “New Incremental Term Loan FacilityLoan”) and/or or request an increase in the principal amount Aggregate Commitments (which increase may take the form of an increase to the Initial Revolving Credit Facility or to the Term Facility) (each an “Incremental Increase”; together with the Incremental Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facilityand each, an “Incremental Term Facility” and, any Loans made pursuant to ”) by an amount (the “Incremental Term Facility (including any New Term LoansAmount”), “together with amounts utilized to incur any Incremental Notes, not exceeding the sum of (A) the greater of (i) $250,000,000 and (ii) an amount equal to the Consolidated EBITDA of the Borrower and its consolidated Subsidiaries calculated on a Pro Forma Basis for the applicable Reference Period$250,000,000, plus the aggregate amount of all voluntary prepayments of Term Loans”) and/or request the establishment of one or more new tranches Loans and permanent reductions of Revolving Credit Commitments made prior to the date of any applicable incurrence (eachother than, in each case, prepayments made with the proceeds of long term indebtedness), plus (B) an unlimited amount so long as, in the case of this clause (B), (x) in the case of Indebtedness secured on a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together pari passu basis with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “the Consolidated Senior Secured Net Leverage Ratio of the Borrower and its Subsidiaries as of the last day of the applicable Reference Period, on a pro forma basis, does not exceed the Consolidated Senior Secured Net Leverage Incurrence Ratio, and (y) in the case of Indebtedness secured on a junior lien or unsecured basis, the Consolidated Total Leverage Ratio of the Borrower and its Subsidiaries as of the last day of the applicable Reference Period, on a pro forma basis does not exceed the Consolidated Total Leverage Incurrence Ratio; provided, that Incremental Loans”Facilities may be incurred under both the preceding clauses (A) and (B) in a single transaction by first calculating the portion of the Indebtedness being incurred under clause (B) (without giving effect to the Indebtedness being incurred under clause (A)) and second calculating the portion of the Indebtedness being incurred under clause (A); provided provided, further, that no existing Lender will have (i) any such request for an obligation to Incremental Facility shall be in a minimum amount of $25,000,000, (ii) the Borrower may make any Incremental Facility, nor will a maximum of five such requests following the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofAmendment No. 1
Appears in 1 contract
Sources: Credit Agreement (Integra Lifesciences Holdings Corp)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) Borrowers may, from time to time after the Closing Date, upon notice by written notice the Borrower Representative to the Administrative AgentAgent (who shall promptly notify the applicable Lenders) specifying the proposed amount thereof, request (i) an increase in the establishment Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (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 be increased hereunder (except as otherwise provided in clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”) and (iii) the addition of one or more new tranches of term loan facilities denominated in Dollars to the Facilities (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase and the Term Commitment Increase, the “New Loan Commitments”) by an amount not to exceed (after giving effect to any applicable usage of such amount under this Agreement) the sum of (x) $45,000,000, minus the aggregate principal amount of (1) Incremental Notes incurred pursuant to Section 2.15 in reliance on the Cash-Capped Incremental Facility, (2) Second Lien Additional Indebtedness utilizing Section 2.14(a)(x) of the Second Lien Credit Agreement and (3) Incremental Notes (as defined in the Second Lien Credit Agreement) incurred pursuant to Section 2.15of the Second Lien Credit Agreement in reliance on the Cash-Capped Incremental Facility (as defined in the Second Lien Credit Agreement) (such aggregate amount, the “Cash-Capped Incremental Facility”) and/or increase plus (y) an unlimited amount (the principal “Ratio-Based Incremental Facility”) so long as the Maximum First Lien Net Leverage Requirement is satisfied plus (z) an amount equal to all (i) voluntary prepayments of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility Section 2.05(a) or Section 10.07(j)(i)(A) and (including any New Term Loans), “Incremental Term Loans”ii) and/or request the establishment of one or more new tranches voluntary prepayments of Revolving Credit Commitments (each, a “New Loans and Revolving Credit Facility”) and/or request an increase in any Tranche of Commitment Increases to the extent the Revolving Credit Commitments with respect thereto are permanently reduced by the amount of such payments, other than in the case of clauses (together i) and (ii), such voluntary prepayments financed with the proceeds of other Indebtedness (the “Prepay Incremental Amount”) (such sum, at any New Revolving Credit Facilitysuch time, an the “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental LoansAmount”); provided that no existing Lender will have any such request for an obligation increase shall be in a minimum amount equal to make the lesser of (x) the applicable Threshold Amount and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that (1) if at the time of any such incurrence or issuance, there is capacity under the foregoing clause (z), such capacity must be utilized before utilizing any available capacity under the foregoing clauses (x) and (y), (2) any capacity available under the foregoing clause (y) shall be deemed to be utilized prior to utilizing any capacity available under the foregoing clause (x) and (3) loans may be incurred under the Cash-Capped Incremental Facility, nor will the Company have Ratio-Based Incremental Facility and the Prepay Incremental Amount, and proceeds from any obligation to approach any existing Lenders to provide any such incurrence under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility and the Prepay Incremental Amount may be utilized in a single transaction by first, calculating the incurrence of the Prepay Incremental Amount, if any, second calculating the incurrence under the Ratio-Based Incremental Facility and third calculating the incurrence under the Cash-Capped Incremental Facility; provided, further, that solely for the purpose of calculating the Maximum First Lien Net Leverage Requirement to determine the availability under the New Loan Commitments at the time of incurrence, (a) any New Loan Commitments that are unsecured or secured on a junior basis shall nevertheless be deemed to be secured on a pari passu basis to the Obligations and (b) any cash proceeds from any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility pursuant to this Section 2.14 at such test date in calculating such Maximum First Lien Net Leverage Requirement shall be excluded for purposes of cash netting (however, to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness). At the time of sending such notice to the applicable Lenders, the Borrower Representative shall specify the time period within which each applicable Lender is requested to respond (which, unless the Incremental Arranger otherwise agrees, shall in no event be less than ten Business Days from the date of delivery of such notice).
(b) The Borrowers may appoint an Incremental Arranger in connection with a New Loan Commitment. Each applicable Lender shall notify the Incremental Arranger within such time period whether or not it agrees to participate in such new facility or increase of the existing Tranche and, if so, whether by a percentage of the requested increase equal to, greater than, or less than its Pro Rata Share of any then-existing Tranche. Any Lender approached may elect or decline, in its sole discretion, to provide such increase or new facility. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment with respect to such Tranche or to provide a new Tranche. The Incremental Arranger shall notify the Borrower Representative of the Lenders’ responses to each request made under this Section 2.14. To achieve the full amount of a requested increase or issuance of New Term Facility, as applicable, the Borrowers may also invite additional Eligible Assignees reasonably satisfactory to the Administrative Agent, each L/C Issuer and the Swing Line Lender (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 or delayed) to become Lenders pursuant to a joinder agreement to this Agreement in form and substance reasonably satisfactory to the Incremental Arranger and, to the extent required by clause (iii) in the first proviso after 10.01(i), the Administrative Agent.
(c) 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 is added in accordance with this Section 2.14, the Incremental Arranger and the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase or New Term Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase or New Term 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, 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 such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term 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, 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 executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize 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. If the Incremental Arranger is not the Administrative Agent, the actions authorized to be taken by the Incremental Arranger herein shall be done in excess consultation with the Administrative Agent and, with respect to the preparation of any documentation necessary or appropriate to carry out the provisions of this Section 2.14 (including amendments to this Agreement), any comments to such documentation reasonably requested by the Administrative Agent shall be reflected therein. The Borrowers, L/C Issuers and Lenders agree that the Administrative Agent shall have no liability for the actions of any Incremental Arranger (if other than the Administrative Agent) and this sentence shall survive the termination of this Agreement.
(d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility pursuant to this Section 2.14, (i) except as set forth below, no Event of Default would exist after giving effect to such increase, (ii) (A) in the case of any increase of the sum Revolving Tranche, (1) the 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 (3) the terms and documentation applicable to the Revolving Credit Facility shall apply, (B) 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 2.14 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 of, any other outstanding Term Loans, New Term Loans or Specified Refinancing Term Loans, as applicable, and (C) in the case of any New Term Facility, 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 all-in yield and as set forth in subclause (C) above with respect to final maturity and Weighted Average Life to Maturity, or otherwise as shall be reasonably satisfactory to the Administrative Agent, any such New Term Facility shall have the same terms as the Term Facility; provided that (x) to the extent such terms and documentation are not consistent with the existing Term Facility (except to the extent permitted above), such terms (if favorable to the existing Lenders) shall be incorporated into this Agreement for the benefit of all existing Lenders without further amendment requirements other than consultation with the Administrative Agent pursuant to Section 2.14(c), including, for the avoidance of doubt, at the option of the Borrowers, any increase in the Applicable Rate relating to the 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 Incremental Arranger and the Administrative Agent and
Appears in 1 contract
Sources: First Lien Credit Agreement (Pivotal Acquisition Corp)
Incremental Facilities. (a) The CompanySo long as no Event of Default under Subsection 9.1(a) or (f) exists or would arise therefrom, the Borrower shall have the right (on behalf of itself, or if agreed by all in the case of Incremental Loans the Lenders under the applicable Incremental Facilityproceeds of which will be subject to an escrow or other similar arrangement, a Guarantor an Escrow Subsidiary (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental FacilityEscrow Subsidiary, an “Additional Escrow Borrower”)), at any time and from time to time after the Closing Date, (i) may, by written notice to the Administrative Agent, request the establishment of new term loan commitments under one or more new tranches of term loan credit facilities denominated to be included in Dollars this Agreement (each, a the “New Incremental Term Loan FacilityCommitments”), (ii) and/or to increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Existing Term Loans by requesting new term loan commitments to be added to such an Existing Tranche of Term Loans (together with any New the “Supplemental Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term LoansCommitments”), “Incremental Term Loans”(iii) and/or to request the establishment of new commitments under one or more new tranches of Revolving Credit Commitments revolving facilities to be included in this Agreement (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an the “Incremental Revolving Commitments”), and (iv) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit FacilityCommitments” and, together with any the Incremental Term FacilityLoan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Facilities” andCommitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with Subsection 8.1(b)(i) and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Chief Financial Officer or a Responsible Officer of the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test). Any loans thereundermade in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion); provided that such amount may be less than $10,000,000 if such amount represents the then remaining aggregate principal amount available to be Incurred in compliance with Subsection 8.1(b)(i).
(b) Each request from the Borrower pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution, an “Additional Incremental Revolving Credit Loans” andLender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Term LoansCommitments, the “Incremental LoansLenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment). The Borrower may agree, in its sole discretion, to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Incremental Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate.
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit I-1 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit I-2 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan Documents (including amendments to Subsection 2.2(b) to increase the amortization payments or interest rate margins thereunder or add customary call protection provisions with respect thereto to allow for the applicable Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Subsection 2.8(c).
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, an Escrow Borrower (if applicable) and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Subsection 2.8; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors (it being understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Subsidiary Guarantor), and (other than with respect to proceeds of such Incremental Commitments which are subject to an escrow or other similar arrangement and any related deposit of cash, Cash Equivalents and/or Temporary Cash Investments to cover interest and premium in respect of such Incremental Commitments) will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term Loan Facility Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the ABL/Term Loan Intercreditor Agreement, a Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, or (at the Borrower’s option) will be unsecured), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations and (C) no existing Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Lien on any asset (other than proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of cash, Cash Equivalents and/or Temporary Cash Investments to cover interest and premium in respect of such Incremental Loans) of any Loan Party that does not also secure the Term Loan Facility Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment from the Net Available Cash of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event or from Excess Cash Flow, to the extent the Net Available Cash of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans pursuant to Subsection 4.4(e), on more than a ratable basis with the Initial Term Loans (after giving effect to any amendment in accordance with Subsection 11.1(d)(vi)); (ii) no Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders be required to provide any such Incremental FacilityCommitment unless it so agrees; (iii) [reserved]; (iv) the maturity date and the weighted average life to maturity of any Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity (1) for customary bridge financings, which, subject to customary conditions (as determined by the Borrower in good faith, which determination shall be conclusive), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable, (2) pursuant to an escrow or similar arrangement with respect to the proceeds of such Incremental Term Loans or (3) of Indebtedness under any Incremental Term Loan Commitments in an aggregate principal amount at any time outstanding (together with the aggregate principal amount of any Additional Obligations, any Refinancing Indebtedness and Indebtedness under any Specified Refinancing Term Loan Facility and any applicable Extended Tranche, in each case outstanding under the Earlier Maturity Date Basket) not in excess of the sum ofEarlier Maturity Date Basket); (v) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Lenders; provided that in the event that the applicable interest rate margins for any syndicated floating rate Incremental Term Loans denominated in Dollars, the principal amount of which exceeds the MFN Threshold Amount, that are secured on a pari passu basis by the Collateral securing the First Lien Obligations, with a Stated Maturity that is earlier than 12 months following the Tranche B Term Loan Maturity Date, Incurred by the Borrower pursuant to the Ratio Incremental Facility, made on or prior to the 12-month anniversary of the First Amendment Effective Date and not Incurred to finance or refinance, or otherwise in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary, or any other Investment, are higher than the applicable interest rate margin for the Tranche B Term Loans by more than 75 basis points, then the effective interest rate margin for the applicable Tranche B Term Loans at the time such Incremental Commitments become effective (the “Existing Interest Rate”) shall be increased to the extent necessary so that the Existing Interest Rate is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 75 basis points (the “Adjusted Interest Rate”, and the number of basis points by which the Existing Interest Rate is increased, the “Increased Amount”); provided, further that, in determining the applicable interest rate margins for the applicable Tranche B Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such Tranche B Term Loans or any Incremental Term Loan, as applicable, in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest rate based on an assumed four-year life to maturity) (provided that, if such Tranche B Term Loans are issued in a manner such that all such Tranche B Term Loans were not issued with a uniform amount of OID or upfront fees within the applicable Tranche of Tranche B Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of Tranche B Term Loans shall be determined on a weighted average basis); (B) any arrangement or structuring fees payable in connection with the Incremental Term Loans or any other fees payable in connection with the Incremental Term Loans (other than, in the case of syndicated Incremental Term Loans, and only if such fees are shared with all Additional Incremental Lenders providing such syndicated Incremental Term Loans) shall, in each case, be excluded; (C) any amendments to the Applicable Margin or effective interest rate margin on the applicable Tranche B Term Loans that became effective subsequent to the First Amendment Effective Date but prior to the effective time of such Incremental Term Loans shall also be included in such calculations, (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the applicable Tranche B Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for such Tranche B Term Loans shall be required, to the extent an increase in the interest rate floor for such Tranche B Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to such Tranche B Term Loans shall be increased by such amount to the extent necessary
Appears in 1 contract
Sources: Credit Agreement (Core & Main, Inc.)
Incremental Facilities. (a) The Company, Borrower may at any time or if agreed by all of from time to time after the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) mayEffective Date, by written notice delivered to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the establishment of (i) one or more new tranches term loans which may be the same Class as any outstanding Class of term facilities denominated in Dollars Term Loans (each, a “New Term Loan FacilityIncrease”) and/or increase one or more new Classes of term loans (collectively, with any Term Loan Increase (and including the principal amount of the Initial Term Loans, any Incremental Tranche B Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New and Tranche B-1 Term Loans), the “Incremental Term Loans”), (ii) and/or request the establishment of one or more new tranches increases in the amount of the Revolving Credit Commitments of any Class (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilityeach such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments (the “Additional/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” (including therein the Tranche B Term Loan Facility and Tranche B-1 Term Loan Facility, and the Tranche B Term Loan Commitments and the Tranche B-1 Term Loan Commitments, respectively)); provided that:
(i) after giving effect to the effectiveness of any Incremental Agreement referred to below, except as set forth in the proviso to clause (b) below, no Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving effect thereto), no Event of Default shall exist; provided that, with respect to any Incremental Agreement the primary purpose of which is to finance a Permitted Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the Capital Stock of, another Person, this clause (i) may be waived or omitted by Incremental Lenders holding more than 50% of the aggregate Incremental Commitments under such Incremental Agreement (other than with respect to the absence of any Event of Default under Section 11.1 or Section 11.5, which requirement may not be waived by such Incremental Lenders); and
(ii) after giving effect to the incurrence of such Incremental Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and after giving effect to any Specified Transaction to be consummated in connection therewith), the Borrower and the Restricted Subsidiaries would be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the incurrence of any such Incremental Facilities, calculated on a Pro Forma Basis, in each case as if such Incremental Term Loans, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitments, as applicable, had been outstanding (and any related transactions had occurred) on the first day of such Test Period.
(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 following the Effective Date, 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, of the sum of (A) the greater of $500,000,000 and an amount equal to 100% of Consolidated EBITDA for the Test Period most recently then-ended for which the Section 9.1 Financials required by Section 9.1(a) or Section 9.1(b) have actually been delivered (minus, the aggregate principal amount of all Permitted Additional Debt incurred under clause (A) of the proviso to Section 10.1(v)(ii) at any time following the Effective Date), plus (B) an aggregate additional amount of Indebtedness, such that, after giving Pro Forma Effect to such incurrence or issuance (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitments then outstanding were fully drawn (except to the extent that such Incremental Revolving Credit Commitments refinanced or replaced all or any portion of the Revolving Credit Commitments outstanding on the Effective Date))) the Borrower would be in compliance with a Consolidated Secured Debt to Consolidated EBITDA Ratio as 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 transaction) had occurred on the first day of such Test Period, that is no greater than 4.0:1.0 (the amounts under clause (A), the “Free and Clear Incremental Amount” and the amounts under clause (B), the “Incurrence-Based Incremental Amount” and, together with the Free and Clear Incremental Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be incurred without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, 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 5.2(a)(i) and subject to the payment of premiums set forth in Section 5.1(b), if applicable, (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, and without regard to whether an Event of Default has occurred and is continuing, to the 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 and (iii) the Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof in accordance with Section 1.2(m) (and, absent such election, shall be deemed to have used the Incurrence-Based Incremental Amount). Without limiting the foregoing, all or any portion of the Free and Clear Incremental Amount incurred concurrently with all or any portion of the Incurrence-Based Incremental Amount shall not count as Indebtedness for the purposes of calculating the applicable ratio pursuant to the Incurrence-Based Incremental Amount in accordance with Section 1.2(m).
(i) The Incremental Term Loans (I) shall rank pari passu in right of payment and of security with the Tranche B-1 Term Loanswith the Initial TLA Loans and if secured, shall be subject to Section 1.15, (II) shall not mature earlier than the Tranche B-1 Term LoanInitial TLA Maturity Date, (III) shall not have a shorter Weighted Average Life to Maturity than the Tranche B-1 Term Loan Facility,[reserved], (IV) shall have an amortization schedule (subject to clause (III) above), 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, however, that if the Effective Yield in respect of any Incremental Term FacilityLoans that rank pari passu in right of payment and security with the Tranche B-1 Term Loans as of the date of funding thereof and established on or prior to the Tranche B-1 Term Loan Maturity Date exceeds the Effective Yield in respect of the Tranche B-1 Term Loans by more than 0.50%, “then the Applicable Margin in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Tranche B-1 Term Loans is equal to the Effective Yield of the Incremental Facilities” andTerm Loans minus 0.50%; provided, further, to the loans thereunder, “Incremental Revolving Credit Loans” and, together with extent that any change in the Effective Yield of the Tranche B-1 Term Loans is necessitated by this clause (c)(i) on the basis of an effective interest rate floor in respect of the Incremental Term Loans, “Incremental the increased Effective Yield in the Tranche B-1 Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Effective Yield effected solely by increases in the interest rate floor(s) applicable to the Tranche B-1 Term Loans and (V) may otherwise have terms and conditions different from those of the Tranche B-1 TermInitial TLA Loans”); provided that (except with respect to matters contemplated by subclauses (II), (III) and (IV) in above) any differences shall either reflect market terms and conditions (taken as a whole) for such type of Indebtedness at the time of incurrence or issuance (as determined in good faith by the Borrower) or be reasonably satisfactory to the Administrative Agent.
(ii) The Incremental Revolving Credit Commitment Increase shall be treated 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.
(iii) The Additional/Replacement Revolving Credit Commitments (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, (ii) shall not mature earlier than the Revolving Credit Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Credit Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts and prepayment premiums as determined by the Borrower and the lenders of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments, (v) 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 (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that (except with respect to matters contemplated by clauses (ii), (iii), (iv) and (v) above) any differences shall be reasonably satisfactory to the Administrative Agent.
(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 Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental FacilityTerm Loan, nor no existing Lender with a Revolving Credit Commitment will the Company have any obligation to approach provide a portion of any Incremental Revolving Credit Commitment Increase and no existing Lenders Lender with an 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, other institutional lender or other investor (any such other bank, 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 any Incremental FacilityRevolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, each Swingline Lender and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Revolving Credit Commitment Increases or 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.
(e) Commitments in respect of Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit 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 Agreement”) to this Agreement and, as appropriate, the 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 such amendments to this Agreement and the other Credit Documents as may be necessary, in an aggregate amount not in excess the reasonable opinion of the sum ofAdministrative Agent and the Borrower, to effect the 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” (including the Second Amendment Effective Date, the Fourth Amendment Effective Date, the Fifth Amendment Effective Date, the Seventh Amendment Effective Date and the Eighth Amendment Effective Date)), and the occurrence of any Credit Events pursuant to such Incremental Agreement, shall be subject to the satisfaction of such conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments for any purpose not prohibited by this Agreement; provided that the proceeds of any Incremental Term Loans incurred, and any Additional/Replacement Revolving Credit Commitments provided, in either case as described in the proviso to Section 2.14(b), shall be used in accordance with the terms thereof.
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Incremental Facilities. (a) The CompanyBorrowers or any Guarantor or, or if agreed by all solely in the case of a New Term Loan Facility denominated in an Alternative Currency, any Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Lenders under the applicable Incremental Facility, a Guarantor Administrative Agent (any such Guarantor, Guarantor or Restricted Subsidiary for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment of one or more new tranches of term facilities denominated in Dollars Dollars, an Alternative Currency or any other currency agreed to by the applicable Borrower, the Administrative Agent and the Lenders providing such New Term Loan Facility (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company Borrower have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofof (x) the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) and (ii) 100% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding, less any amount of Indebtedness incurred pursuant to clause (x)(i) of Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, (i) in case of Incremental Facilities that are secured on a pari passu basis with the Obligations, the First Lien Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (ii) in case of Incremental Facilities that are secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (iii) in case of Incremental Facilities that are unsecured, the Fixed Charge Coverage Ratio is less than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Credit Facilities are fully drawn) and, in each instance, for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that Incremental Facilities (1) shall be incurred pursuant to clause (y) above prior to utilization of any capacity pursuant to clause (x) above, (2) amounts incurred in reliance on clause (x) above concurrently with amounts incurred in reliance on clause (y) above shall not be included as Indebtedness in the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, for purposes of calculating any amounts that may be incurred pursuant to clause (y) above on the same day and (3) if all or any portion of any Incremental Facility was originally incurred or issued in reliance on clause (x) above and thereafter such amount could have been incurred pursuant to clause (y) above, such amount of such Incremental Facility shall be reclassified, as the applicable Borrower may elect from time to time, as having been incurred pursuant to clause (y) above and thereafter shall not count as utilization of clause (x) above; provided, further, that, notwithstanding the foregoing or anything to the contrary set forth herein, (1) Incremental Term Loans may be incurred without regard to any of the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on or about the date of incurrence to permanently prepay and refinance Term Loans of any Tranche selected by the applicable Borrower on a dollar-for-dollar basis, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso, and (2) New Revolving Credit Facilities may be incurred without regard to the foregoing limits to the extent that such New Revolving Credit Facilities are used on or about the date of incurrence to refinance and permanently reduce Revolving Credit Commitments of any Tranche selected by Borrower on a dollar-for-dollar basis, and any such Revolving Credit Commitments thereunder (the “Refinancing Incremental Revolving Credit Commitments”) shall be deemed to have been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the applicable Incremental Facility 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 (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) and by the L/C Issuer to the extent such consent, if any, would be required under Section 11.06 for an assignment of Loans or Revolving Credit Commitments (any such Affiliate or other Person, a “New Incremental Lender”) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the amounts of such allocations and (iii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Credit Facility. Such Incremental Facility shall become effective as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Facility (except that, with respect to this clause (A), solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist), (B) both before and after giving effect to such Incremental Facility, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid (except, solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, (x) with respect to Section 5.02(a), such Incremental Facility shall only be subject to customary “funds certain provisions” and (y) with respect to Section 5.02(b), such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist); (C) any Incremental Facility provided by any New Incremental Lender shall be effected pursuant to one or more joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by a Borrower (or Additional Borrower, if applicable) and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers 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.
(b) The creation or provision of any Incremental Facility or Incremental Loan (and, in connection therewith, any amendment to the terms of this Agreement that is necessary or appropriate to implement the provisions thereof or that is favorable to the then-existing Lenders, in each case, as reasonably determined by the Administrative Agent in its sole discretion) shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment.
(c) The terms and provisions of any New Revolving Credit Facility (other than pricing, maturity and fees) shall be, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the existing Revolving Credit Facility; provided that, (i) no New Revolving Credit Facility shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date of any Tranche of Revolving Credit Loans (or, in the case of Refinancing Incremental Revolving Credit Commitments, the final maturity date of the Tranche of Revolving Credit Commitments that are being refinanced), (ii) any guarantor of any New Revolving Credit Facility shall also be a Guarantor; provided, that, in the event any New Revolving Credit Facility is incurred by a Foreign Subsidiary of ESI, such New Revolving Credit Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (iii) if secured, such New Revolving Credit Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is materially more restrictive, when taken as a whole, to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent and (iv) each New Revolving Credit Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent).
(d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Tranche B-1 Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the Tranche B-1 Term Loans, as applicable; provided that, except as otherwise set forth herein or in the joinder agreement set forth in clause (a), then (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity such refinanced Tranche of the Term Loans, (or, in the case of any New Term Loans that are Refinancing Incremental Term Loans, the weighted average life to maturity of the Tranche of Term Loans that are being refinanced), (ii) the final maturity date with respect to any New Term Loans shall be no earlier than the maturity date of such refinanced Tranche (or, in the case of any New Term Loans that are refinancing Incremental Term Loans, the final maturity date of the Tranche of Term Loans that are being refinanced), (iii) if the Yield on any New Term Loans incurred no later than 12 months after the Closing Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Rate then in effect for any Term Loans, then the Applicable Rate then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term Loans (and if the margins on the New Term Loans are subject to a leveraged-based pricing grid, appropriate increases to the Applicable Rates for the Term Loans, consistent with the foregoing, shall be made) (this clause (iii), the “MFN Adjustment”), (iv) any guarantor of any New Term Loan Facility shall also be a Guarantor; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (v) if secured, such New Term Loan Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is more restrictive to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (vi) each New Term Loan Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (vii) any New Term Loan Facility may be denominated in Euros or Pounds Sterling so long as (A) the borrower thereunder is a Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent and (B) such New Term Loan Facility is subject to guarantee, collateral and collateral allocation arrangements that are reasonably satisfactory to ESI and the Administrative Agent. Each joinder agreement referred to in Section 2.14(a) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, as reasonably determined by the Administrative Agent in its sole discretion, to effect the provision of this Section 2.14.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Tranche B-1 Term Loans or Initial Revolving Credit Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B-1 Term Loans or Initial Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Eurocurrency Rate Loan to be converted into a Base Rate Loan on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Eurocurrency Rate Loans on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Eurocurrency Rate Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans is to be allocated to an existing Interest Period for a Eurocurrency Rate Loan then, subject to Section 2.08(b), the interest rate applicable to such Incremental Loan for the remainder of such Interest Period shall equal the Adjusted Euro
Appears in 1 contract
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more (x) additional 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 a separate Class, collectively, the “Incremental Term Loan Commitments”) and/or (y) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), by an aggregate 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 10.1(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to 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 Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) unless the immediately succeeding clause (y) is applicable, no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (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 Borrower to bring down the representations and warranties under the Credit Documents, (iii) the Incremental Loan Commitments shall be effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(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). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) 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 and (b) 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 tranches or existing series of term facilities denominated in Dollars Term Loans or Revolving Credit Commitments, each, a “Series”).
(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) 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 shall 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 Term Revolving Loan FacilityLender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) and/or increase a portion of such Revolving Credit ▇▇▇▇▇▇’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 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 all 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 assumptions, the Initial Term Loans, any Incremental Term Revolving Credit Loans or any Extended Term Loans of such Class will be held by requesting new term loan commitments to be added to existing Revolving Credit Lenders under such Loans (together Class and New Revolving Loan Lenders under such Class ratably in accordance with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit FacilityLoan”) and/or request and each loan made under an increase in any Tranche of Additional Revolving Credit Commitments Commitment (together with any New Revolving Credit Facilityeach, an “Incremental Additional Revolving Credit FacilityLoan” and, together with any Incremental Term Facility, “Incremental Facilities” andNew Revolving Credit Loans, the loans thereunder, “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 applicable Incremental Revolving Credit Commitment and all matters relating thereto.
(c) On any Increased Amount Date on which any 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” and, together with the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) 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. 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 Loan Commitments and the respective related Incremental Term Loans, in each case effected pursuant to a Term Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans subject to such increase; provided, that underwriting, arrangement, structuring, 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 Loan Commitments and the respective related Incremental Term Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term Loan Commitments may be paid in connection with such Incremental Term Loan Commitments. Any Incremental Term Loans incurred as a Term Loan Increase shall be fungible for the U.S. federal income tax purposes with the existing Class of Term Loans proposed to be increased thereby. The terms and provisions of any Incremental Term Loan Commitments and the respective related Incremental Term Loans of any Series not effected pursuant to a Term Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that:
(i) [reserved];
(ii) [reserved];
(iii) the Incremental Term Loans and Incremental Term Loan Commitments, (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and 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 Loans hereunder; provided that if such Incremental Term Loans are unsecured or rank junior in right of payment or as to security with the Obligations, such Incremental Term Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with the Obligations and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable);
(iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental Term Loans shall be determined by the Borrower and the lender(s) thereunder; provided, however, that, with respect to any broadly syndicated Dollar-denominated Incremental Term Loans made under Incremental Term Loan Commitments, if the Yield in respect of any Incremental Term Loans that rank pari passu in right of payment and security with the Initial Term Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable SOFR Margin, as applicable, in respect of such Initial Term Loans shall be adjusted so that the Yield in respect of such Initial Term Loans is equal to the Yield in respect of such Incremental Term Loans minus 0.50%; provided, further, to the extent any change in the Yield of the Initial Term Loans is necessitated by this clause (iv) on the basis of an effective interest rate floor in respect of the Incremental Term Loans the increased Yield in the Initial Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Yield effected solely by increases in the interest rate floor(s) applicable to the Initial Term Loans (this clause (iv), the “Incremental LoansMFN Adjustment”); provided provided, further, that no existing Lender will have an obligation the MFN Adjustment shall not apply to make Incremental Term Loans (a) that mature on or after the twelve month anniversary of the Term Loan Maturity Date, (b) that are incurred after the twelve month anniversary of the Closing Date, (c) that are incurred in reliance on the Incremental Fixed Dollar Basket or (d) the proceeds of which are used to consummate a Permitted Acquisition (clauses (a) through (d) of this proviso, collectively, the “MFN Exceptions”); and
(v) all other terms of any Incremental FacilityTerm Loans (other than as described in clauses (i), nor will (ii), (iii) and (iv) above) may differ from the Company have terms of the Initial Term Loans if reasonably satisfactory to the Borrower and the lender(s) providing such Incremental Term Loans.
(e) The terms and provisions of any obligation New Revolving Credit Commitments and the related New Revolving Credit Loans shall be substantially identical to approach the Class of Commitments and related Revolving Credit Loans subject to increase by such New Revolving Credit Commitments and New Revolving Credit Loans; provided, that underwriting, arrangement, structuring, ticking, commitment, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such New Revolving Credit Commitments and related New Revolving Credit Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such New Revolving Credit Commitments may be paid in connection with such New Revolving Credit Commitments. Additional Revolving Credit Commitments and Additional Revolving Credit Loans shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided, further, that notwithstanding anything to the contrary in this Section 2.14 or otherwise:
(i) any existing such Additional Revolving Credit Commitments and Additional Revolving Credit Loans shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans (and, if applicable, shall be subject to a subordination agreement and/or the Junior Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent); and
(ii) any such Additional Revolving Credit Commitments and Additional Revolving Credit Loans (x) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (y) if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable).
(f) The Administrative Agent and the Lenders hereby consent to provide the consummation of the transactions contemplated by this Section 2.14 and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such extension or any other transaction contemplated by this Section 2.14. Each Incremental FacilityAmendment 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 an aggregate amount not in excess the reasonable opinion of the sum ofAdministrative Agent and the Borrower, to effect the provisions of this Section 2.14 (including increasing amortization payments to achieve fungibility of a Term Loan Increase with such existing Term Loan).
Appears in 1 contract
Sources: Credit Agreement (Vistra Corp.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more new tranches (xw) additional term loans, which may be of term facilities denominated in Dollars the same Class as any then- existing Term B Loans (each, a “New Term Loan FacilityB Increase”) and/or increase or a separate Class of Term B Loans (the principal amount commitments for additional term loans of the Initial Term Loanssame Class or a separate Class, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facilitycollectively, an the “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term LoansB Commitments”), “Incremental Term Loans”(x) and/or request the establishment additional commitments consisting of one or more new tranches letter of credit facilities which may be of the same Class as any then existing letter of credit facilities hereunder or a separate Class of letter of credit commitments (such commitments, collectively, the “Incremental Letter of Credit 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, 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 Revolving Commitments” and, together with the Additional Revolving Commitments, the “Incremental Revolving Commitments”; together with the Incremental Term B Commitments and, the Incremental Term C Commitments, the “Incremental Term C Commitments and the Incremental Letter of Credit 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 Section 10.01(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 at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount 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 or a portion of the Incremental Commitments; provided, that, any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Commitment. In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date; provided, that, (i) (x) other than as described in the immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under (A) Section 11.01 or Section 11.05 shall exist on such Increased Amount Date and (B) such other provisions of Article Xi as may otherwise be required by the Lenders providing the applicable Incremental Commitment immediately before or immediately after giving effect to such Incremental Commitment and the borrowing of any Incremental Loans thereunder, (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 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 Incremental Amendments executed and delivered
(b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to Additional Revolving Commitments, each of the Revolving Lenders with an existing Revolving 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 aan Additional Revolving Commitment of such Class (each, an “Additional Revolving Lender”), and each of such Additional Revolving Lenders shall 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 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 all Revolving Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the Revolving 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 assumptions, the Revolving Loans of such Class will be held by existing Revolving Lenders under such Class and Additional Revolving Lenders under such Class ratably in accordance with their respective Revolving Commitments of such Class after giving effect to the addition of such Additional Revolving Commitments to such existing Revolving Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Commitments, (i) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each loan made under an Additional Revolving Commitment (each, an “Additional Revolving Loan”) and each loan made under an New Revolving Commitment (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit FacilityLoan” and, together with any Incremental Term Facility, “Incremental Facilities” andthe Additional Revolving Loans, the loans thereunder, “Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Loans and (ii) each Additional Revolving Lender and each Revolving Lender with a New Revolving 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 applicable Incremental Revolving Commitment and all matters relating thereto.
(c) On any Increased Amount Date (x) on which any Incremental Term 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
(d) 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, “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; provided, that: (i) (xii) (x) the applicable Incremental Term B Maturity Date of each Series shall be no earlier than the Initial Term B Maturity Date and (y) the applicable Incremental Term C Maturity Date of each Series shall be no earlier than the Initial Term C Maturity Date, provided, the requirements of the foregoing clause Error! Reference source not found. shall not apply to (x) any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements or (y) any Indebtedness incurred in reliance on the Inside Maturity Basket; (ii) (xiii) the Weighted Average Life to Maturity of the applicable Incremental Term B Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term B Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term B Loans); provided that no existing Lender will have an obligation to make any Incremental Facilityprovided, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess requirements of the sum offoregoing clause Error! Reference source not found. shall not apply to (x) any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements or (y) any Indebtedness incurred in reliance on the Inside Maturity Basket; (iii) (xiv) the Incremental Term B Loans, Incremental Term B Commitments, Incremental Term C Loans and Incremental Term C Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term B Loans hereunder and 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
Appears in 1 contract
Sources: Credit Agreement (Talen Energy Corp)
Incremental Facilities. (a) The CompanySubject to the conditions set forth in clause (f) below, the Borrower may at any time or if agreed by all of from time to time after the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) mayAmendment Effective Date, by written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the establishment of (i) one or more new tranches of additional term facilities denominated loans or an increase in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount any Class of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request under one or more additional term facilities or an increase thereof (the establishment “Incremental Term Facility”), (ii) one or more increases in the total amount of the Revolving Credit Commitments (the “Additional Revolving Facility Commitments”) under the Revolving Facility, provided that such Additional Revolving Facility Commitments shall be on the same terms as the existing Revolving Credit Commitments and in all respects shall become part of the Revolving Facility hereunder, or (iii) one or more new tranches of revolving credit commitments (the “Incremental Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (Facility Commitments” and together with any New Additional Revolving Credit FacilityFacility Commitments, an the “Incremental Revolving Credit Commitments”) under one or more additional revolving credit facilities (the “Incremental Revolving Facility” and, and together with any Incremental Term Facility, the “Incremental Facilities” and”). Notwithstanding anything to the contrary herein, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will sum of (i) the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate principal amount not in excess of the sum ofAdditional Revolving Facility Commitments,
Appears in 1 contract
Sources: Amendment Agreement
Incremental Facilities. (a) The CompanyBorrowers or any Guarantor or, or if agreed by all solely in the case of a New Term Loan Facility denominated in an Alternative Currency, any Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Lenders under the applicable Incremental Facility, a Guarantor Administrative Agent (any such Guarantor, Guarantor or Restricted Subsidiary for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment of one or more new tranches of term facilities denominated in Dollars Dollars, an Alternative Currency or any other currency agreed to by the applicable Borrower, the Administrative Agent and the Lenders providing such New Term Loan Facility (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company Borrower have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofof (x) the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) and (ii) 100% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding, less any amount of Indebtedness incurred pursuant to clause (x)(i) of Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, (i) in case of Incremental Facilities that are secured on a pari passu basis with the Obligations, the First Lien Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (ii) in case of Incremental Facilities that are secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (iii) in case of Incremental Facilities that are unsecured, the Fixed Charge Coverage Ratio is greater than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Credit Facilities are fully drawn) and, in each instance, for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that Incremental Facilities (1) shall be incurred pursuant to clause (y) above prior to utilization of any capacity pursuant to clause (x) above, (2) amounts incurred in reliance on clause (x) above concurrently with amounts incurred in reliance on clause (y) above shall not be included as Indebtedness in the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, for purposes of calculating any amounts that may be incurred pursuant to clause (y) above on the same day and (3) if all or any portion of any Incremental Facility was originally incurred or issued in reliance on clause (x) above and thereafter such amount could have been incurred pursuant to clause (y) above, such amount of such Incremental Facility shall be reclassified, as the applicable Borrower may elect from time to time, as having been incurred pursuant to clause (y) above and thereafter shall not count as utilization of clause (x) above; provided, further, that, notwithstanding the foregoing or anything to the contrary set forth herein, (1) Incremental Term Loans may be incurred without regard to any of the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on or about the date of incurrence to permanently prepay and refinance Term Loans of any Tranche selected by the applicable Borrower on a dollar-for-dollar basis, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso, and (2) New Revolving Credit Facilities may be incurred without regard to the foregoing limits to the extent that such New Revolving Credit Facilities are used on or about the date of incurrence to refinance and permanently reduce Revolving Credit Commitments of any Tranche selected by Borrower on a dollar-for-dollar basis, and any such Revolving Credit Commitments thereunder (the “Refinancing Incremental Revolving Credit Commitments”) shall be deemed to have been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the applicable Incremental Facility 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 (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) and by the L/C Issuer to the extent such consent, if any, would be required under Section 11.06 for an assignment of Loans or Revolving Credit Commitments (any such Affiliate or other Person, a “New Incremental Lender”) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the amounts of such allocations and (iii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Credit Facility. Such Incremental Facility shall become effective as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Facility (except that, with respect to this clause (A), solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist), (B) both before and after giving effect to such Incremental Facility, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid (except, solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, (x) with respect to Section 5.02(a), such Incremental Facility shall only be subject to customary “funds certain provisions” and (y) with respect to Section 5.02(b), such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist); (C) any Incremental Facility provided by any New Incremental Lender shall be effected pursuant to one or more joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by a Borrower (or Additional Borrower, if applicable) and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers 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.
(b) The creation or provision of any Incremental Facility or Incremental Loan (and, in connection therewith, any amendment to the terms of this Agreement that is necessary or appropriate to implement the provisions thereof or that is favorable to the then-existing Lenders, in each case, as reasonably determined by the Administrative Agent in its sole discretion) shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment.
(c) The terms and provisions of any New Revolving Credit Facility (other than pricing, maturity and fees) shall be, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the existing Revolving Credit Facility; provided that, (i) no New Revolving Credit Facility shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date of any Tranche of Revolving Credit Loans (or, in the case of Refinancing Incremental Revolving Credit Commitments, the final maturity date of the Tranche of Revolving Credit Commitments that are being refinanced), (ii) any guarantor of any New Revolving Credit Facility shall also be a Guarantor; provided, that, in the event any New Revolving Credit Facility is incurred by a Foreign Subsidiary of ESI, such New Revolving Credit Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (iii) if secured, such New Revolving Credit Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is materially more restrictive, when taken as a whole, to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent and (iv) each New Revolving Credit Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent).
(d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Tranche B-1 Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the Tranche B-1 Term Loans, as applicable; provided that, except as otherwise set forth herein or in the joinder agreement set forth in clause (a), then (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity of the Tranche B-1 Term Loans, (or, in the case of any New Term Loans that are Refinancing Incremental Term Loans, the weighted average life to maturity of the Tranche of Term Loans that are being refinanced), (ii) the final maturity date with respect to any New Term Loans shall be no earlier than the maturity date of the Tranche B-1 Term Loans (or, in the case of any New Term Loans that are refinancing Incremental Term Loans, the final maturity date of the Tranche of Term Loans that are being refinanced), (iii) if the Yield on any New Term Loans incurred no later than 12 months after the Closing Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Rate then in effect for any Term Loans, then the Applicable Rate then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term Loans (and if the margins on the New Term Loans are subject to a leveraged-based pricing grid, appropriate increases to the Applicable Rates for the Term Loans, consistent with the foregoing, shall be made) (this clause (iii), the “MFN Adjustment”), (iv) any guarantor of any New Term Loan Facility shall also be a Guarantor; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (v) if secured, such New Term Loan Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is more restrictive to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (vi) each New Term Loan Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (vii) any New Term Loan Facility may be denominated in Euros or Pounds Sterling so long as (A) the borrower thereunder is a Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent and (B) such New Term Loan Facility is subject to guarantee, collateral and collateral allocation arrangements that are reasonably satisfactory to ESI and the Administrative Agent. Each joinder agreement referred to in Section 2.14(a) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, as reasonably determined by the Administrative Agent in its sole discretion, to effect the provision of this Section 2.14.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Tranche B-1 Term Loans or Initial Revolving Credit Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B-1 Term Loans or Initial Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Term SOFR Loan to be converted into a Base Rate Loan on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Term SOFR Loan, EURIBO Rate Loan or RFR Loan on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Term SOFR Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans are to be allocated to an existing Interest Period for a Term SOFR Loan or EURIBO Rate Loan then, subject to Section 2.08(b), the interest rate applicable to such Incremental Loan for the remainder of such Interest Period shall equal the T
Appears in 1 contract
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more (x) additional 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 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 Revolving Commitments” and, together with the Additional Revolving Commitments, the “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 at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount 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 or a portion of the Incremental Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Commitment. In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Commitment immediately before or immediately after giving effect to such Incremental Commitment and the borrowing of any Incremental Loans thereunder, (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 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 Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, 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. 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 be designated (x) 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 tranches or existing series of term facilities denominated in Dollars (Term B Loans, Term C Loans or Revolving Commitments, each, a “New Term Loan FacilitySeries”).
(b) and/or increase On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to Additional Revolving Commitments, each of the Revolving Lenders with an existing Revolving 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 (each, an “Additional Revolving Lender”), and each of such Additional Revolving Lenders shall 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 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 all Revolving Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the Revolving 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 assumptions, the Initial Term LoansRevolving Loans of such Class will be held by existing Revolving Lenders under such Class and Additional Revolving Lenders under such Class ratably in accordance with their respective Revolving Commitments of such Class after giving effect to the addition of such Additional Revolving Commitments to such existing Revolving Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Term Loans or any Extended Term Loans by requesting new term Revolving Commitments, (i) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each loan commitments to be added to such Loans made under an Additional Revolving Commitment (together with any New Term Loan Facilityeach, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term LoansAdditional Revolving Loan”) and/or request the establishment of one or more new tranches of and each loan made under an New Revolving Credit Commitments Commitment (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit FacilityLoan” and, together with any Incremental Term Facility, “Incremental Facilities” andthe Additional Revolving Loans, the loans thereunder, “Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Loans and (ii) each Additional Revolving Lender and each Revolving Lender with a New Revolving 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 applicable Incremental Revolving Commitment and all matters relating thereto.
(c) On any Increased Amount Date (x) on which any Incremental Term 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 an Incremental Term C Commitment (each, an “Incremental Term C Lender”) of any Series shall make a term letter of credit loan to the Borrower (each, an “Incremental Term C Loan” and, together with the Incremental Term B Loans and the Incremental Revolving Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Commitment of such Series, and (ii) each Incremental Term C Lender of any 102 Series shall become a Lender hereunder with respect to the Incremental Term C Commitment of such Series and the 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 respective related Incremental Term B Loans and Incremental Term 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; provided that:
(i) (x) the applicable Incremental Term B Maturity Date of each Series shall be no earlier than the Initial Term B Maturity Date and (y) the applicable Incremental Term C Maturity Date of each Series shall be no earlier than the Initial Term C Maturity Date, provided, the requirements of the foregoing clause (i) 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;
(ii) the Weighted Average Life to Maturity of the applicable Incremental Term B Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term B Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term B Loans); provided, the 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, Incremental Term B Commitments, Incremental Term C Loans and Incremental Term C Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term B Loans hereunder and 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 no existing Lender will have an obligation if such Incremental Term B Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to make security with 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 (except in connection with any Incremental Facilityrefinancing, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facilityextension, in an aggregate amount not in excess of the sum ofrenewal, replacement, repurchase or retirement thereof permitted by this Agreement), 103
Appears in 1 contract
Sources: Credit Agreement (Talen Energy Corp)
Incremental Facilities. (a) The CompanyAt any time or from time to time on or after the SecondThird Amendment Effective Date, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative AgentAgent elect to request (i) prior to the Maturity Date of the applicable Revolving Credit Facility, request one additional revolving credit facility tranche (“New Revolving Credit Commitments”) or one or more increases to the existingTranche A Revolving Credit Commitments or the NewTranche B Revolving Credit Commitments (any such increase in commitments, the “Increased Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”) and/or (ii) prior to the Maturity Date of the Term B Loan Facility, the establishment of one or more new tranches term loan commitments (the “New Term Commitments” and, together with the New Revolving Credit Commitments and the IncreasedIncremental Revolving Credit Commitments, the “Incremental Commitments”) which may be of the same Class as existing Term Loans or a separate Class of new term facilities denominated loans; provided that, (x) the aggregate principal amount of all such Incremental Commitments shall not exceed (A) in Dollars the case of any Incremental Revolving Credit Commitments, $135,000,000; provided that the sum of the Incremental Revolving Credit Commitments plus the Existing Revolving Credit Commitments then in effect shall not exceed $155,000,000, plus (B) in the case of both the Incremental Revolving Credit Commitments and the New Term Commitments, $75,000,000, plus (CB) after the full utilization of the amounts available under clause (A) above, in the case of the Incremental Revolving Credit Commitments, and clause (B) above, in the case of both the Incremental Revolving Credit Commitments and the New Term Commitments, an additional amount of Incremental Revolving Credit Commitments and/or New Term Commitments so long as in the case of this clause (CB), the Senior Secured Leverage Ratio shall not exceed 2.75:1.00 as of the end of the Test Period most recently ended, both before and after giving Pro Forma Effect to such IncreasedIncremental Revolving Credit Commitments or New Term Loans (assuming a borrowing of the maximum amount of Loans available under the Revolving Credit Commitments and any Incremental Revolving Credit Commitments after giving effect to such Incremental Revolving Credit Commitment and any Incremental Revolving Credit Commitments previously made pursuant to this Section 2.14 and excluding, for purposes of determining Consolidated Total Debt, the cash proceeds from the borrowing of the proposed Incremental Revolving Credit Commitments or New Term Loans) and (y) any such request shall be for an aggregate principal amount of Incremental Commitments that is not less than $5,000,000 (or such lesser amount which shall be approved by Administrative Agent or such lesser amount that shall constitute the difference between the maximum aggregate principal amount of Incremental Commitments indicated above and all such Incremental Commitments obtained prior to such date) and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (i) the date (each, a an “New Term Loan FacilityIncreased Amount Date”) and/or increase on which the principal amount Borrower proposes that the applicable Incremental Commitments shall be effective, which shall be a date not less than fifteen (15) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as shall be reasonably acceptable to the Administrative Agent) and (ii) the identity of the Initial Term Loans, any Incremental Term Loans each Lender or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, other Person that is an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments Eligible Assignee (each, a “New Revolving Credit FacilityLender” or “New Term Lender”, as applicable) and/or request to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or New Term Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Borrower shall first approach each existing Lender to provide any Incremental Commitment, which Lender may elect or decline, in its sole discretion, to provide all or any portion of such requested Incremental Commitment. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that, (1) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments; (2) after giving effect to the making of any New Term Loans or effectiveness of any Incremental Revolving Credit Commitments, each of the conditions set forth in Section 4.02 shall be satisfied; (3) the Incremental Revolving Credit Commitments or New Term Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and Administrative Agent, and each of which shall be recorded in the Register, and each New Revolving Credit Lender and New Term Lender shall be subject to the requirements set forth in Section 10.15; (4) the Borrower shall make any payments required pursuant to Section 3.05 in connection with the Incremental Commitments, if applicable; and (5) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction.
(b) On any Increased Amount Date on which Increased Revolving Credit Commitments are effected through an increase to the existing Revolving Credit Commitments of any Class, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders of the applicable Class shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders of such Class, at the principal amount thereof, such interests in any Tranche 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 purchases, such Class of Revolving Credit Loans will be held by existing Revolving Credit Lenders of such Class and New Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Increased Revolving Credit Commitments to the Revolving Credit Commitments of such Class, (together b) each Increased Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment of such Class and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan of such Class and (c) each New Revolving Credit Lender shall become a Lender with respect to the Increased Revolving Credit Commitment and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements in Section 2.02 and 2.05(a) of this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(c) Any New Revolving Loans made pursuant to any New Revolving Credit Facility, Commitments established on an “Incremental Increased Amount Date shall be designated as a Class of New Revolving Loans separate from the Revolving Credit Facility” andFacility for all purposes of this Agreement. On any Increased Amount Date on which any New Revolving Credit Commitments of any Class are effected, together subject to the satisfaction of the foregoing terms and conditions, each New Revolving Lender of such Class shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such Class and the New Revolving Loans of such Class made pursuant thereto.
(d) Any New Term Loans made pursuant to any Incremental New Term FacilityCommitments of a separate Class of term loans on an Increased Amount Date shall be designated a separate Class of New Term Loans for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any Class are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such Class shall make a Loan to the Borrower (a “Incremental Facilities” andNew Term Loan”) in an amount equal to its New Term Commitment of such Class, and (ii) each New Term Lender of such Class shall become a Lender hereunder with respect to the New Term Commitment of such Class and the New Term Loans of such Class made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to any existing Class of Term Loans and be treated as the same Class as such Term Loans.
(e) 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 Class of New Term Commitments and the New Term Lenders of such Class , (ii) the Class of New Revolving Credit Commitments and the New Revolving Loans of such Class and (iiiand (ii) in the case of each notice to any Revolving Credit Lender of the applicable Class with respect to an increase in the Revolving Credit Commitments of such Class, the loans thereunder, “Incremental respective interests in such Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental FacilityLender’s Revolving Credit Commitments of such Class, in an aggregate amount not in excess each case, subject to the assignments contemplated by clause (b) of the sum ofthis Section 2.14.
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Incremental Facilities. (a) The CompanyParent Borrower may, or if agreed from time to time after the Closing Date, upon notice by all of the Lenders under Parent Borrower to the applicable Incremental Facility, a Guarantor Administrative Agent and the Person appointed by the Parent Borrower to arrange an incremental Facility (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facilityeach, an “Additional BorrowerIncremental Credit Facility”) may, by written notice to (such Person (who may be
(i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent 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 (i) an increase in the establishment Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (each, 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 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 tranches revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (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 (iv) the addition of one or more new term facilities denominated loan facilities, in Dollars each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, ; and any Incremental Term Loans or any Extended Term Loans advance made by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (eacha Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment”; and together with the Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any Commitment Increase, the New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Commitments and the Term Facility, “Incremental Facilities” andCommitment Increase, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental LoansNew Loan Commitments”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, ;) in an aggregate amount not in excess of to exceed the sum of:
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Sources: Refinancing Amendment and Second Amendment to Credit Agreement (MeridianLink, Inc.)
Incremental Facilities. (a) The CompanyBorrowers or any Guarantor or, or if agreed by all solely in the case of a New Term Loan Facility denominated in an Alternative Currency, any Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Lenders under the applicable Incremental Facility, a Guarantor Administrative Agent (any such Guarantor, Guarantor or Restricted Subsidiary for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment of one or more new tranches of term facilities denominated in Dollars Dollars, an Alternative Currency or any other currency agreed to by the applicable Borrower, the Administrative Agent and the Lenders providing such New Term Loan Facility (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company Borrower have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofof (x) the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) and (ii) 100% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding, less any amount of Indebtedness incurred pursuant to clause (x)(i) of Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, (i) in case of Incremental Facilities that are secured on a pari passu basis with the Obligations, the First Lien Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (ii) in case of Incremental Facilities that are secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (iii) in case of Incremental Facilities that are unsecured, the Fixed Charge Coverage Ratio is greater than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Credit Facilities are fully drawn) and, in each instance, for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that Incremental Facilities (1) shall be incurred pursuant to clause (y) above prior to utilization of any capacity pursuant to clause (x) above, (2) amounts incurred in reliance on clause (x) above concurrently with amounts incurred in reliance on clause (y) above shall not be included as Indebtedness in the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, for purposes of calculating any amounts that may be incurred pursuant to clause (y) above on the same day and (3) if all or any portion of any Incremental Facility was originally incurred or issued in reliance on clause (x) above and thereafter such amount could have been incurred pursuant to clause (y) above, such amount of such Incremental Facility shall be reclassified, as the applicable Borrower may elect from time to time, as having been incurred pursuant to clause (y) above and thereafter shall not count as utilization of clause (x) above; provided, further, that, notwithstanding the foregoing or anything to the contrary set forth herein, (1) Incremental Term Loans may be incurred without regard to any of the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on or about the date of incurrence to permanently prepay and refinance Term Loans of any Tranche selected by the applicable Borrower on a dollar-for-dollar basis, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso, and (2) New Revolving Credit Facilities may be incurred without regard to the foregoing limits to the extent that such New Revolving Credit Facilities are used on or about the date of incurrence to refinance and permanently reduce Revolving Credit Commitments of any Tranche selected by Borrower on a dollar-for-dollar basis, and any such Revolving Credit Commitments thereunder (the “Refinancing Incremental Revolving Credit Commitments”) shall be deemed to have been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the applicable Incremental Facility 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 (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) and by the L/C Issuer to the extent such consent, if any, would be required under Section 11.06 for an assignment of Loans or Revolving Credit Commitments (any such Affiliate or other Person, a “New Incremental Lender”) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the amounts of such allocations and (iii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Credit Facility. Such Incremental Facility shall become effective as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Facility (except that, with respect to this clause (A), solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist), (B) both before and after giving effect to such Incremental Facility, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid (except, solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, (x) with respect to Section 5.02(a), such Incremental Facility shall only be subject to customary “funds certain provisions” and (y) with respect to Section 5.02(b), such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist); (C) any Incremental Facility provided by any New Incremental Lender shall be effected pursuant to one or more joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by a Borrower (or Additional Borrower, if applicable) and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers 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.
(b) The creation or provision of any Incremental Facility or Incremental Loan (and, in connection therewith, any amendment to the terms of this Agreement that is necessary or appropriate to implement the provisions thereof or that is favorable to the then-existing Lenders, in each case, as reasonably determined by the Administrative Agent in its sole discretion) shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment.
(c) The terms and provisions of any New Revolving Credit Facility (other than pricing, maturity and fees) shall be, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the existing Revolving Credit Facility; provided that, (i) no New Revolving Credit Facility shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date of any Tranche of Revolving Credit Loans (or, in the case of Refinancing Incremental Revolving Credit Commitments, the final maturity date of the Tranche of Revolving Credit Commitments that are being refinanced), (ii) any guarantor of any New Revolving Credit Facility shall also be a Guarantor; provided, that, in the event any New Revolving Credit Facility is incurred by a Foreign Subsidiary of ESI, such New Revolving Credit Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (iii) if secured, such New Revolving Credit Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is materially more restrictive, when taken as a whole, to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent and (iv) each New Revolving Credit Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent).
(d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Tranche B-1 Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the Tranche B-1 Term Loans, as applicable; provided that, except as otherwise set forth herein or in the joinder agreement set forth in clause (a), then (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity of the Tranche B-1 Term Loans, (or, in the case of any New Term Loans that are Refinancing Incremental Term Loans, the weighted average life to maturity of the Tranche of Term Loans that are being refinanced), (ii) the final maturity date with respect to any New Term Loans shall be no earlier than the maturity date of the Tranche B-1 Term Loans (or, in the case of any New Term Loans that are refinancing Incremental Term Loans, the final maturity date of the Tranche of Term Loans that are being refinanced), (iii) if the Yield on any New Term Loans incurred no later than 12 months after the Closing Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Rate then in effect for any Term Loans, then the Applicable Rate then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term Loans (and if the margins on the New Term Loans are subject to a leveraged-based pricing grid, appropriate increases to the Applicable Rates for the Term Loans, consistent with the foregoing, shall be made) (this clause (iii), the “MFN Adjustment”), (iv) any guarantor of any New Term Loan Facility shall also be a Guarantor; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (v) if secured, such New Term Loan Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is more restrictive to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (vi) each New Term Loan Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (vii) any New Term Loan Facility may be denominated in Euros or Pounds Sterling so long as (A) the borrower thereunder is a Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent and (B) such New Term Loan Facility is subject to guarantee, collateral and collateral allocation arrangements that are reasonably satisfactory to ESI and the Administrative Agent. Each joinder agreement referred to in Section 2.14(a) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, as reasonably determined by the Administrative Agent in its sole discretion, to effect the provision of this Section 2.14.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Tranche B-1 Term Loans or Initial Revolving Credit Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B-1 Term Loans or Initial Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Eurocurrency Rate Loan or RFR Loan to be converted into a Base Rate Loan on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Eurocurrency Rate LoansLoan or RFR Loan on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Eurocurrency Rate Loans or RFR Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans is to be allocated to an existing Interest Period for a Eurocurrency Rate Loan then, subject to Section 2.08(b), the interest rate applicable to such Incremental Loan for the remainder of such Interest P
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Incremental Facilities. (ai) The CompanyAfter the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans), or if agreed by all of the Lenders under Revolving Termination Date (with respect to Revolving Loans), as applicable, the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, may request the establishment of (x) one or more new (A) additional tranches of term facilities denominated loans or (B) increases (an “Incremental Term Loan Increase”) to an existing tranche of term loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) one or more increases in Dollars the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the proposed use of proceeds thereof, the aggregate amount (the “Maximum Facilities Amount”) of the Facilities (which term, for the avoidance of doubt, shall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed the greater of (A) $3,000,000,000 and (B) an amount equal to 350% of Consolidated EBITDA, determined to give pro forma effect to any related transactions consummated concurrently therewith, for the mostly recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 6.1 (ii) after the Restatement Effective Date and before the Final Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $500,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental 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. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment, (ii) any entity providing all or a portion of the Incremental Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed) and (iii) any entity providing all or a portion of the Incremental Revolving Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to each Issuing Lender (with such acceptance by the Issuing Lenders to not be unreasonably withheld or delayed).
(b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that
(i) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments,
(ii) the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 6.1 after giving effect to such Incremental Commitments and the use of proceeds thereof (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof) and assuming any related Specified Transaction has occurred,
(iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans,
(iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, 55
(v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments,
(vi) with respect to the Term Loans (other than any Incremental Tranche A Term Loans), if the final maturity date of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than any Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above (but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) 5▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
(▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above (but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and
(viii) the Incremental Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “New Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Facility”) and/or increase Lender or the principal amount Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or the Incremental Synthetic L/C Lender agrees to be bound to the terms of the Initial this Agreement as a Lender. Except for Incremental Term LoansLoans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans or any Extended made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans by requesting new term loan commitments for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. Notwithstanding the foregoing, in the case of any Incremental Loan Commitments implemented to finance a Permitted Acquisition, satisfaction of the conditions set forth in clauses (i) and (ii) may, at the option of the Borrower, be added determined solely as of the date on which the definitive agreement governing such Permitted Acquisition is executed, calculated to give pro forma effect to such acquisition as if it had occurred on such date of determination.
(c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving 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 Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (together y) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. 57 The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility.
(d) On any New Increased Amount Date on which any Incremental Term Loan FacilityCommitments are effected, subject to the satisfaction of the foregoing terms and conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Facility” andLoan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, any and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments Synthetic L/C Commitment (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, Synthetic L/C Lender”; together with any Incremental Revolving Lenders and Incremental Term FacilityLoan Lenders, the “Incremental Facilities” andLenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. For the avoidance of doubt, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Tranche B Term Loans constitute Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will Loans for all purposes of this Agreement and the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofother Loan Documents.
Appears in 1 contract
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) Initial Borrower may, by written notice to the Administrative AgentAgent at any time, on one or more occasions, request the establishment of to (i) add one or more new tranches Classes of term facilities denominated in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial any Class of Term Loans, any Incremental Term Loans or any Extended Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facilitysuch new Class or increase, an “Incremental Term Facility” and, and any Loans loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request (ii) increase the establishment principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new tranches Classes of Revolving Credit Commitments incremental revolving facilities (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilitysuch new Class or increase, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, ”; and the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, ) in an aggregate amount not to exceed the Incremental Amount. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000, increments in excess thereof, (y) with respect to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal to the Dollar Equivalent of $10,000,000,, and $5,000,000, increments in excess thereof or (z) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under ?Section 10.03(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the sum ofIncremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility and (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this Agreement and not as an increase to the existing Revolving Commitment hereunder (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time and (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility or (ii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added, subject to the last paragraph of 10.02(b), also for the benefit of (x) in the case of any Incremental Term Facility, any then existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then existing Revolving Facility), any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.04 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.04 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.02 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent.
Appears in 1 contract
Sources: Credit Agreement (Galleria Co.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) Borrowers may, from time to time after the Closing Date, upon notice by written notice the Parent Borrower to the Administrative AgentAgent specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the establishment Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (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 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 tranches revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (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 (iv) the addition of one or more new term facilities denominated loan facilities, in Dollars 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 Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) in an amount not to exceed the sum of (x) $25,000,000 minus the amount incurred prior to the date of incurrence thereof under the Second Lien Cash-Capped Incremental Amount (the “Cash-Capped Incremental Facility”) and/or and (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage Requirement is satisfied (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase the principal shall be in a minimum amount of the Initial lesser of (x) $3,500,000 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 this Section 2.14 and New Incremental Notes issued pursuant to Section 2.15:
(A) 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,
(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) and the Cash-Capped Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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) and then calculating the incurrence under the Cash-Capped Incremental Facility, and
(C) 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. The Borrowers may designate any Person (such Person, the “Incremental Arranger”) with such titles under the New Loan Commitments as 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 with the consent of the Administrative Agent and, solely in connection with a Revolving Credit Commitment Increase or New Revolving Facility, each L/C Issuer (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 or delayed) to become Lenders pursuant to a joinder agreement to this Agreement.
(c) 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 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. In connection with (i) any Incremental 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 shall be amended in a writing (which shall be executed and delivered by the Borrowers and the Administrative Agent (and the Lenders hereby authorize the Administrative Agent 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 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 Extended 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 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 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 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 by requesting new term loan commitments or Specified Refinancing Term Loans increased pursuant to this Section shall be added no earlier than the Latest Maturity Date for, and such additional Loans shall not have a Weighted Average Life to such 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 may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and (together with D) in the case of any New Term Loan Facility, an “Incremental (1) other than in the case of Extendable Bridge Loans, such New Term Facility” andFacility 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) 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 Loans made such New Term Facility or New Revolving Facility shall have terms reasonably satisfactory to the Administrative Agent; provided, that (x) to the extent such terms are more favorable to the existing Lenders than comparable terms existing in the Loan Documents, such terms shall be, as determined by the Parent Borrower in consultation with the Administrative Agent, incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) without further amendment requirements, including, for the avoidance of doubt, at the option of the Parent Borrower, 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 and (y) otherwise, may be incorporated if reasonably satisfactory to the Parent Borrower, the Incremental Arranger and 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 to the extent reasonably requested by the Administrative Agent. 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 Incremental Term Facility increase to an existing Revolving Tranche, (including any New Term Loans), “Incremental Term Loans”x) and/or request 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 establishment of one or more new tranches of increase to the Revolving Credit Commitments (each, a “New 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 Facility”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) and/or request an increase in if, on the date of such increase, there are any Tranche 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 Commitments Loans made hereunder (together 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 each Lender under such Term Loan Tranche will participate proportionately in each then outstanding Borrowing of Term Loans under the Term Loan Tranche.
(f) (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with the other Facilities, not be guaranteed by any Person that is not a Borrower or Guarantor under each of the other Facilities, and be unsecured, secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities (and on a pari passu or junior basis to the Second Lien Facility), 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 Administrative Agent (provided that, if the New Revolving Facility or New Term Facility are secured on a junior basis to the Facilities, the First Lien/Second Lien Intercreditor Agreement shall be deemed satisfactory), (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 Facility, an “Incremental Revolving Credit Facility” andas the case may be, together with unless the Borrowers otherwise elect (but in any Incremental event no more favorably than the existing Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Loans or Revolving Credit Loans” and, together as applicable), and (iii) with respect to any Incremental New Term Facility that is secured on a pari passu basis with the other Facilities, 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 50 basis points higher than the corresponding All-in Yield payable by the Borrowers for the Initial Term Loans, “Incremental Loans”); provided unless the All-in Yield with respect to the Initial Term Loans is increased to the amount necessary so that no existing Lender will have the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the Initial Term Loans is equal to 50 basis points.
(g) To the extent any New Revolving Facility or New Term Facility shall be denominated in an obligation Alternative Currency, this Agreement and the other Loan Documents shall be amended to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders extent necessary or appropriate to provide any Incremental Facilityfor the administrative and operational provisions applicable to such Alternative Currency, in an aggregate amount not in excess of each case as are reasonably satisfactory to the sum ofAdministrative Agent.
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Sources: First Lien Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Incremental Facilities. (a) The Company, Borrower may at any time or if agreed by all of from time to time after the Lenders under Restatement Agreement Effective Date and giving effect to the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under 2024 Refinancing Term Loans and the applicable Incremental Facility, an “Additional Borrower”) mayRevolving Credit Commitments, by written notice delivered to the Administrative Agent, request the establishment of (i) one or more new tranches additional Classes of term facilities denominated in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount loans or additional term loans of the Initial Term Loans, same Class of any Incremental Term Loans or any Extended Term Loans by requesting new existing Class of term loan commitments to be added to such Loans loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), the “Incremental Term Loans”), (ii) and/or request the establishment of one or more new tranches increases in the amount of the Revolving Credit Commitments of any Class (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilityeach such increase, an “Incremental Revolving Credit FacilityCommitment Increase”) or (iii) one or more additional Classes of revolving credit commitments in U.S. Dollars or any Alternative Currency (the “Additional/Replacement Revolving Credit Commitments,” and, together with any the Incremental Term FacilityLoans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” andand the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, subject to Section 1.11, at the loans thereundertime that any such Incremental 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 proviso to clause (b) below, no Event of Default (or, in 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 or 12.5) shall 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 in minimum increments of $1,000,000 or like amount in an Alternative Currency, as applicable, in excess thereof), and, subject to the first 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 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) 5.50:1.00 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 any the Incremental Term LoansBase 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 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) if consisting of a Credit Facility, shall rank equal in right of payment and security with the Initial Term Loans, 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 Loan 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) above), an amortization schedule (subject to clause (C) above), 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, (I) during the period commencing on the Restatement Agreement Effective Date and ending on the date that is six months after the Restatement Agreement Effective Date, in the event that the Effective Yield for any Incremental Term Loans denominated in U.S. Dollars (other than (x) Incremental Term Loans (1) established pursuant to the first proviso of Section 2.14(b), (2) having a final maturity date that is more than one year after the Initial Term Loan Maturity Date, (3) Incurred in connection with a Permitted Acquisition or Permitted Investment or (4) in an aggregate amount equal to or less than $145,000,000 or (y) 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) above and any such conversion or exchange is subject only to conditions customary for similar conversions or exchanges (clauses (x)(1) through (4) and (y), collectively, the “Incremental MFN Exceptions”)), is in the case of Incremental Term Loans denominated in U.S. Dollars 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% (this proviso, the “Incremental 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 Term SOFR, 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 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 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) 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 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) if consisting of a Credit Facility 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 Loan Parties on a senior basis and, (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 Issuing Lender, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable Issuing Lenders 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 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 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 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)).
(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 the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, including the currency types and denominations of the Borrower thereof. Incremental Term Loans may be made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld or delayed), by any existing Lender (it being understood that no existing Term Loan Lender will have an obligation to make a portion of any Incremental FacilityTerm Loan, nor no existing Lender with a Revolving Credit Commitment will the Company have any obligation to approach provide a portion of any Incremental Revolving Credit Commitment Increase and no existing Lenders 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, 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, each Issuing Lender and the Designated Acquisition Swingline Lender 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 14.6(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 FacilityRevolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, each applicable Issuing Lender shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 14.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) Commitments in respect of Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or in the case of an aggregate amount not Incremental Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in excess of the sum ofsuch Lender’s applicable Revolving Credit Commitment) under this Agre
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Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Parent Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more new (x) additional tranches of term facilities denominated loans (including on a delayed draw basis) (the commitments thereto, the “New Term Loan Commitments”), (y) increases in Dollars 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 $10,000,000 (or the Dollar Equivalent thereof) 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). Each such notice shall specify the date on which the Parent Borrower proposes that the New Loan Commitments shall be effective (the effective date, the “Increased Amount Date”), the Borrowers (including by appointing a Guarantor (other than Holdings) as a “Borrower”, subject to customary “know your customer” and equivalent procedures and compliance with Section 1.13 (which shall be deemed to apply to New Term Loan Commitments, mutatis mutandis)) to which such New Loan Commitments will be available and the currency in which such New Loan Commitments will be borrowed. Subject to Section 1.11(c), in connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Parent 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 Borrowers may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments; 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, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) (A) subject to Section 1.11(c), no Event of Default under Section 11.1 or Section 11.5 (solely with respect to a Borrower) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable and (B) after giving effect to such New Loan Commitments, the condition in Section 7.1(b) shall be satisfied (it being understood that all references to “the date of such Credit Event” or similar language in such Section 7.1 shall be deemed to refer to the applicable date determined in accordance with Section 1.11(c)); provided, further, that the lenders providing such New Loan Commitments may modify and/or waive the requirement regarding the condition in Section 7.1(b) for all purposes hereunder, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Parent Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), (iii) the New Loan Commitments (x) shall not be incurred or guaranteed by any Subsidiary other than any Credit Party and (y) if secured, shall not be secured by any assets other than the Collateral and (iv) the Borrowers 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 shall, at the election of the Parent 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. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement.
(b) On any Increased Amount Date on which 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 Incremental Revolving Credit Commitments, (i) each 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 (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 the Letter of Credit Issuer shall have consented (not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(a) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender.
(c) On or after the 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 FacilityLender”) and/or of any Series shall make a Loan to the Borrowers, as specified in the applicable Notice of Borrowing, (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount up 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 and documentation set forth in the Joinder Agreement as determined by the Parent Borrower; provided that (i) subject to the Inside Maturity Exceptions, the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date (as in effect at the time of such incurrence or obtaining of a commitment with respect thereto); (ii) subject to the Inside Maturity Exceptions, the weighted average life to maturity of all New Term Loans shall be no shorter than the remaining weighted average life to maturity of the then existing Initial Term Loans (calculated without giving effect to prepayments of the Term Loans) (as in effect at the time of such incurrence or obtaining of a commitment with respect thereto), (iii) the mandatory prepayments of the New Term Loans shall be made on a pro rata basis (or less than pro rata basis) with all other Initial Term Loans in the case of mandatory prepayments applicable to the Initial Term Loans, (iv) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrower(s) and the Lenders thereunder; provided that in the case of broadly syndicated term loan “B” Dollar-denominated New Term Loans that are pari passu in right of payment and security with the then existing Initial Term Loans, if the Effective Yield for Eurocurrency Loans in respect of such New Term Loans exceeds the Effective Yield for Eurocurrency Loans in respect of the then existing Initial Term Loans by more than 0.75%, the Applicable Margin for Eurocurrency 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 is equal to the Effective Yield for Eurocurrency Loans in respect of the New Term Loans minus 0.75% (this proviso, the “MFN Provision”) (provided, that to the extent such increase in Effective Yield is the result of a higher Eurocurrency floor with respect to such New Term Loans, the increase in Effective Yield for the existing Initial Term Loans shall take the form of an increase in the Eurocurrency floor for such Initial Term Loans to the extent of the Effective Yield differential); provided, further, that the MFN Provision shall not apply to (1) New Term Loans incurred on or after the date that is 6 months after the Closing Date, (2) New Term Loans scheduled to mature on or after the date that is one year after the Initial Term Loan Maturity Date, (3) any New Term Loans originally incurred in reliance upon the Shared Incremental Amount or the Prepayment and Extension Amount, (4) any New Term Loans incurred in connection with a Permitted Acquisition or other permitted Investment or to refinance Indebtedness incurred in connection with a Permitted Acquisition or other permitted Investment, (5) any New Term Loans having an aggregate principal amount not exceeding the greater of $191,000,000 and 100% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as selected by the Parent Borrower and (6) any New Term Loans that constitutes a bridge facility (clauses (1), (2), (3), (4), (5) and (6), collectively, the “MFN Exceptions”); and (v) to the extent such terms and documentation are materially more favorable to the New Term Loan Lenders than the terms of the existing Initial Term Loans (except to the extent permitted by clause (i), (ii), (iii) or (iv) above), they shall be either (A) reasonably satisfactory to the Administrative Agent (provided that no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Initial Term Loan Maturity Date or if such covenants or other provisions are added for the benefit of the Initial Term Loans), any Incremental Term Loans (B) then-current market terms (as determined by the Borrower in good faith at the time of incurrence or any Extended Term Loans by requesting new term loan commitments issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness or (C) applicable only to be added to such Loans (together with any New periods after the Initial Term Loan Facility, an “Maturity Date.
(e) Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New and Incremental Revolving Credit Facility”) and/or request an increase in any Tranche of Loans shall be identical to the Initial Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, and the loans thereunder, “Incremental related Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”other than the Maturity Date and as set forth in this Section 2.14(e); provided that no existing Lender will have an obligation notwithstanding anything to make the contrary in this Section 2.14 or otherwise:
(i) any such Incremental Facility, nor will Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Company have Revolving Credit Loans and the Term Loans,
(ii) any obligation to approach any existing Lenders to provide any such Incremental Facility, in an aggregate amount Revolving Credit Commitments or Incremental Revolving Credit Loans shall not in excess mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of the sum ofincurrence of such Incremental Revolving Credit Commitments,
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Incremental Facilities. (a) The CompanySo long as no Event of Default under Subsection 9.1(a) or (f) exists or would arise therefrom, the Borrower shall have the right (on behalf of itself, or if agreed by all in the case of Incremental Loans the Lenders under the applicable Incremental Facilityproceeds of which will be subject to an escrow or other similar arrangement, a Guarantor an Escrow Subsidiary (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental FacilityEscrow Subsidiary, an “Additional Escrow Borrower”)), at any time and from time to time after the Closing Date, (i) may, by written notice to the Administrative Agent, request the establishment of new term loan commitments under one or more new tranches of term loan credit facilities denominated to be included in Dollars this Agreement (each, a the “New Incremental Term Loan FacilityCommitments”), (ii) and/or to increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Existing Term Loans by requesting new term loan commitments to be added to such an Existing Tranche of Term Loans (together with any New the “Supplemental Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term LoansCommitments”), “Incremental Term Loans”(iii) and/or to request the establishment of new commitments under one or more new tranches of Revolving Credit Commitments revolving facilities to be included in this Agreement (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an the “Incremental Revolving Commitments”), and (iv) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit FacilityCommitments” and, together with any the Incremental Term FacilityLoan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Facilities” andCommitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with Subsection 8.1(b)(i) and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Chief Financial Officer or a Responsible Officer of the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test). Any loans thereundermade in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion); provided that such amount may be less than $10,000,000 if such amount represents the then remaining aggregate principal amount available to be Incurred in compliance with Subsection 8.1(b)(i).
(b) Each request from the Borrower pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution, an “Additional Incremental Revolving Credit Loans” andLender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Term LoansCommitments, the “Incremental LoansLenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment). The Borrower may agree, in its sole discretion, to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Incremental Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate.
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit I-1 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit I-2 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan Documents (including amendments to Subsection 2.2(b) to increase the amortization payments or interest rate margins thereunder or add customary call protection provisions with respect thereto to allow for the applicable Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Subsection 2.8(c).
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, an Escrow Borrower (if applicable) and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Subsection 2.8; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors (it being understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Subsidiary Guarantor), and (other than with respect to proceeds of such Incremental Commitments which are subject to an escrow or other similar arrangement and any related deposit of cash, Cash Equivalents and/or Temporary Cash Investments to cover interest and premium in respect of such Incremental Commitments) will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term Loan Facility Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the ABL/Term Loan Intercreditor Agreement, a Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, or (at the Borrower’s option) will be unsecured), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations and (C) no existing Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Lien on any asset (other than proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of cash, Cash Equivalents and/or Temporary Cash Investments to cover interest and premium in respect of such Incremental Loans) of any Loan Party that does not also secure the Term Loan Facility Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment from the Net Available Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event or from Excess Cash Flow, to the extent the Net Available Cash Proceeds of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans pursuant to Subsection 4.4(e), on more than a ratable basis with the Initial Term Loans (after giving effect to any amendment in accordance with Subsection 11.1(d)(vi)); (ii) no Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders be required to provide any such Incremental FacilityCommitment unless it so agrees; (iii) [reserved]; (iv) the maturity date and the weighted average life to maturity of any Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity (1) for customary bridge financings, which, subject to customary conditions (as determined by the Borrower in good faith, which determination shall be conclusive), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable or, (2) pursuant to an escrow or similar arrangement with respect to the proceeds of such Incremental Term Loans or (3) of Indebtedness under any Incremental Term Loan Commitments in an aggregate principal amount at any time outstanding (together with the aggregate principal amount of any Additional Obligations, any Refinancing Indebtedness and Indebtedness under any Specified Refinancing Term Loan Facility and any applicable Extended Tranche, in each case outstanding under the Earlier Maturity Date Basket) not in excess of the sum ofEarlier Maturity Date Basket); (v) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Lenders; provided that in the event that the applicable interest rate margins for any syndicated floating rate Incremental Term Loans denominated in Dollars, the principal amount of which exceeds the MFN Threshold Amount, that are secured on a pari passu basis by the Collateral securing the First Lien Obligations, with a Stated Maturity that is earlier than 12 months following the InitialTranche B Term Loan Maturity Date, Incurred by the Borrower pursuant to the Ratio Incremental Facility, made on or prior to the 12-month anniversary of the Closing DateFirst Amendment Effective Date and not Incurred to finance or refinance, or otherwise in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary, or any other Investment, are higher than the applicable interest rate margin for the InitialTranche B Term Loans by more than 75 basis points, then the effective interest rate margin for the applicable InitialTranche B Term Loans at the time such Incremental Commitments become effective (the “Existing Interest Rate”) shall be increased to the extent necessary so that the Existing Interest Rate is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 75 basis points (the “Adjusted Interest Rate”, and the number of basis points by which the Existing Interest Rate is increased, the “Increased Amount”); provided, further that, in determining the applicable interest rate margins for the applicable InitialTranche B Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such InitialTranche B Term Loans or any Incremental Term Loan, as applicable, in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest rate based on an assumed four-year life to maturity) (provided that, if such InitialTranche B Term Loans are issued in a manner such that all such InitialTranche B Term Loans were not issued with a uniform amount of OID or upfront fees within the applicable Tranche of InitialTranche B Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of InitialTranche B Term Loans shall be determined on a weighted average basis); (B) any arrangement or structuring fees payable in connection with the Incremental Term Loans or any other fees payable in connection with the Incremental Term Loans that are not(other than, in the case of syndicated Incremental Term Loans, and only if such fees are shared with all Additional Incremental Lenders providing such syndicated Incremental Term Loans) shall, in each case, be excluded; (C) any amendments to the Applicable Margin or effective interest rate margin on the applicable InitialTranche B Term Loans that became effective subsequent to the ClosingFirst Amendment Effective Date but prior to the effective time of such Incremental Term Loans shall also be included in such calculations, (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the applicable InitialTranche B Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for such InitialTranche B Term Loans shall be required, to the extent an increase in the interest rate floor for such InitialTranche B Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to such InitialTranche B Term Loans shall be increased by such amount to the extent necessary to adjust the applicable Existing Interest Rate to be equal to the applicable Adjusted Interest Rate, (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the applicable Tranche of InitialTranche B Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such InitialTranche B Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the InitialTranche B Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the InitialTranche B Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Term Loans for purposes of determining whether an increase in the Existing Interest Rate shall be required and (F) if the applicable Tranche of InitialTranche B
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Sources: Credit Agreement (Core & Main, Inc.)
Incremental Facilities. (a) The CompanyBorrowers or any Guarantor or, or if agreed by all solely in the case of a New Term Loan Facility denominated in an Alternative Currency, any Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Lenders under the applicable Incremental Facility, a Guarantor Administrative Agent (any such Guarantor, Guarantor or Restricted Subsidiary for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment of one or more new tranches of term facilities denominated in Dollars Dollars, an Alternative Currency or any other currency agreed to by the applicable Borrower, the Administrative Agent and the Lenders providing such New Term Loan Facility (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company Borrower have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofof (x) the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) and (ii) 100% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding, less any amount of Indebtedness incurred pursuant to clause (x)(i) of Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, (i) in case of Incremental Facilities that are secured on a pari passu basis with the Obligations, the First Lien Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (ii) in case of Incremental Facilities that are secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (iii) in case of Incremental Facilities that are unsecured, the Fixed Charge Coverage Ratio is greater than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Credit Facilities are fully drawn) and, in each instance, for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that Incremental Facilities (1) shall be incurred pursuant to clause (y) above prior to utilization of any capacity pursuant to clause (x) above, (2) amounts incurred in reliance on clause (x) above concurrently with amounts incurred in reliance on clause (y) above shall not be included as Indebtedness in the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, for purposes of calculating any amounts that may be incurred pursuant to clause (y) above on the same day and (3) if all or any portion of any Incremental Facility was originally incurred or issued in reliance on clause (x) above and thereafter such amount could have been incurred pursuant to clause (y) above, such amount of such Incremental Facility shall be reclassified, as the applicable Borrower may elect from time to time, as having been incurred pursuant to clause (y) above and thereafter shall not count as utilization of clause (x) above; provided, further, that, notwithstanding the foregoing or anything to the contrary set forth herein, (1) Incremental Term Loans may be incurred without regard to any of the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on or about the date of incurrence to permanently prepay and refinance Term Loans of any Tranche selected by the applicable Borrower on a dollar-for-dollar basis, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso, and (2) New Revolving Credit Facilities may be incurred without regard to the foregoing limits to the extent that such New Revolving Credit Facilities are used on or about the date of incurrence to refinance and permanently reduce Revolving Credit Commitments of any Tranche selected by Borrower on a dollar-for-dollar basis, and any such Revolving Credit Commitments thereunder (the “Refinancing Incremental Revolving Credit Commitments”) shall be deemed to have been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the applicable Incremental Facility 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 (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) and by the L/C Issuer to the extent such consent, if any, would be required under Section 11.06 for an assignment of Loans or Revolving Credit Commitments (any such Affiliate or other Person, a “New Incremental Lender”) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the amounts of such allocations and (iii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Credit Facility. Such Incremental Facility shall become effective as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Facility (except that, with respect to this clause (A), solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist), (B) both before and after giving effect to such Incremental Facility, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid (except, solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, (x) with respect to Section 5.02(a), such Incremental Facility shall only be subject to customary “funds certain provisions” and (y) with respect to Section 5.02(b), such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist); (C) any Incremental Facility provided by any New Incremental Lender shall be effected pursuant to one or more joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by a Borrower (or Additional Borrower, if applicable) and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers 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.
(b) The creation or provision of any Incremental Facility or Incremental Loan (and, in connection therewith, any amendment to the terms of this Agreement that is necessary or appropriate to implement the provisions thereof or that is favorable to the then-existing Lenders, in each case, as reasonably determined by the Administrative Agent in its sole discretion) shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment.
(c) The terms and provisions of any New Revolving Credit Facility (other than pricing, maturity and fees) shall be, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the existing Revolving Credit Facility; provided that, (i) no New Revolving Credit Facility shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date of any Tranche of Revolving Credit Loans (or, in the case of Refinancing Incremental Revolving Credit Commitments, the final maturity date of the Tranche of Revolving Credit Commitments that are being refinanced), (ii) any guarantor of any New Revolving Credit Facility shall also be a Guarantor; provided, that, in the event any New Revolving Credit Facility is incurred by a Foreign Subsidiary of ESI, such New Revolving Credit Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (iii) if secured, such New Revolving Credit Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is materially more restrictive, when taken as a whole, to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent and (iv) each New Revolving Credit Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent).
(d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Tranche B-2 Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the Tranche B-2 Term Loans, as applicable; provided that, except as otherwise set forth herein or in the joinder agreement set forth in clause (a), then (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity of the Tranche B-2 Term Loans, (or, in the case of any New Term Loans that are Refinancing Incremental Term Loans, the weighted average life to maturity of the Tranche of Term Loans that are being refinanced), (ii) the final maturity date with respect to any New Term Loans shall be no earlier than the maturity date of the Tranche B-2 Term Loans (or, in the case of any New Term Loans that are refinancing Incremental Term Loans, the final maturity date of the Tranche of Term Loans that are being refinanced), (iii) if the Yield on any New Term Loans incurred no later than 6 months after the Amendment No. 8 Funding Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Rate then in effect for any Tranche B-2 Term Loans, then the Applicable Rate then in effect for Tranche B-2 Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term Loans (and if the margins on the New Term Loans are subject to a leveraged-based pricing grid, appropriate increases to the Applicable Rates for the Tranche B-2 Term Loans, consistent with the foregoing, shall be made) (this clause (iii), the “MFN Adjustment”), (iv) any guarantor of any New Term Loan Facility shall also be a Guarantor; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (v) if secured, such New Term Loan Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is more restrictive to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (vi) each New Term Loan Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (vii) any New Term Loan Facility may be denominated in Euros or Pounds Sterling so long as (A) the borrower thereunder is a Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent and (B) such New Term Loan Facility is subject to guarantee, collateral and collateral allocation arrangements that are reasonably satisfactory to ESI and the Administrative Agent. Each joinder agreement referred to in Section 2.14(a) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, as reasonably determined by the Administrative Agent in its sole discretion, to effect the provision of this Section 2.14.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Tranche B-23 Term Loans or Initial Revolving Credit Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B-23 Term Loans or Initial Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Term SOFR Loan to be converted into a Base Rate Loan on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Term SOFR Loan, EURIBO Rate Loan or RFR Loan on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Term SOFR Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans are to be allocated to an existing Interest Period for a Term SOFR Loan or EURIBO Rate Loan then, subject to Section 2.08(b), the interest rate applicable to such Incremental Loan for th
Appears in 1 contract
Incremental Facilities. (a) The CompanyBorrower or any Guarantor may, or if agreed from time to time after the Closing Date, upon notice by all of the Lenders under Borrower to the applicable Person appointed by the Borrower to arrange an incremental Facility (such Person, the “Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional BorrowerArranger”) may, by written notice to specifying the Administrative Agentproposed amount thereof and the proposed currency denomination thereof, request (i) the establishment addition of one or more new tranches of term facilities denominated loan facilities, in Dollars 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 Commitment”) and/or (ii) an increase in the amount of the Revolving Credit Commitments (a “Revolving Commitment Increase”; and, together with the New Term Commitments, the “New Loan Commitments”) by (or in) a principal amount not to exceed the sum of (such sum, at any such time, the “Available Incremental Amount”):
(i) the sum of (the amount available under this clause (i), the “Cash-Capped Incremental Facility”) and/or increase (I) the greater of (A) $500,000,000 and (B) 35% of Consolidated EBITDA of the Group Parties, minus (II) Incremental Equivalent Cash Component Debt, plus
(ii) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage Requirement is satisfied and
(iii) an amount equal to (1) all voluntary prepayments, redemptions and repurchases and payments (including prepayments at a discount to par and open market purchases, giving credit to the principal amount of the Initial Term LoansIndebtedness repurchased and all prepayments and permanent commitment reductions) made by Holdings or any of its Subsidiaries in respect of (I) Indebtedness originally incurred or guaranteed by any Loan Party in reliance on the Cash-Capped Incremental Facility and (II) any refinancing, replacement or extension of any of the foregoing (in each case of prepayments of a revolving facility, to the extent accompanied by a corresponding permanent commitment reduction), and (2) permanent commitment reductions of the Revolving Credit Facility and other revolving credit facilitates established in reliance on the “Cash-Capped Incremental Facility” or the “Ratio-based Incremental Facility”, to the extent, in each case, not funded with the proceeds of long term Indebtedness (other than any (I) revolving indebtedness and intercompany loans or (II) without duplication, any Incremental Revolving Commitment Increase, New Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Equivalent Debt incurred in reliance on the Prepayment-Based Incremental Term Facility (including any New Term Loans), the “Prepayment-Based Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”)); provided that no existing Lender will any such request for a New Loan Commitment shall be in a minimum amount of the lesser of (x) $5,000,000 and (y) the entire amount of any New Loan Commitment 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, (A) unless otherwise elected by the Borrower, the Borrower shall be deemed to have an obligation used amounts under the Ratio-Based Incremental Facility (to make any the extent permitted thereby) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum of.
Appears in 1 contract
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more new tranches (w) additional term loans, which may be of term facilities denominated in Dollars the same Class as any then- existing Term B Loans (each, a “New Term Loan FacilityB Increase”) and/or increase or a separate Class of Term B Loans (the principal amount commitments for additional term loans of the Initial Term Loanssame Class or a separate Class, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facilitycollectively, an the “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term LoansB Commitments”), (x) additional term loans the proceeds of which are used to support a letter of credit facility (term “letter of credit” loans), which may be of the same Class as any then-existing term “letter of credit” loans or a separate Class of term “letter of credit” loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term LoansC Commitments”), (y) and/or request the establishment commitments consisting of one or more new tranches letter of Revolving credit facilities, which may be of the same Class as any then-existing Stand-Alone Letter of Credit Commitments (eachthe commitments thereto, the “Additional Stand-Alone Letter of Credit Commitments”) or a separate Class of letter of credit commitments (the commitments thereto, the “New Revolving Stand-Alone Letter of Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit FacilityCommitments” and, together with any Incremental Term Facilitythe Additional Stand-Alone Letter of Credit Commitments, the “Incremental Facilities” andLetter of Credit Commitments”) and/or (z) revolving credit commitments, which may be of the same Class as any then- existing Revolving Commitments (the commitments thereto, the loans thereunder“Additional Revolving Commitments”) or a separate Class of Revolving Commitments (the commitments thereto, the “Incremental New Revolving Credit LoansCommitments” and, together with any the Additional Revolving Commitments, the “Incremental Revolving Commitments”; together with the Incremental Term LoansB Commitments, “the Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofTerm C
Appears in 1 contract
Sources: Credit Agreement (Talen Energy Corp)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more (x) additional 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 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 then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “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 “Incremental Loan Commitments”), by an aggregate 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 10.1(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to 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 Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) unless the immediately succeeding clause (y) is applicable, no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (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 Borrower to bring down the representations and warranties under the Credit Documents, (iii) the Incremental Loan Commitments shall be effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(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). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) 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 tranches or existing series of term facilities denominated in Dollars Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”).
(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) 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 shall 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 Term Revolving Loan FacilityLender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) and/or increase a portion of such Revolving Credit ▇▇▇▇▇▇’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 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 all 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 assumptions, the Initial Term Loans, any Incremental Term Revolving Credit Loans or any Extended Term Loans of such Class will be held by requesting new term loan commitments to be added to existing Revolving Credit Lenders under such Loans (together Class and New Revolving Loan Lenders under such Class ratably in accordance with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit FacilityLoan”) and/or request and each loan made under an increase in any Tranche of Additional Revolving Credit Commitments Commitment (together with any New Revolving Credit Facilityeach, an “Incremental Additional Revolving Credit FacilityLoan” and, together with any Incremental Term Facility, “Incremental Facilities” andNew Revolving Credit Loans, the loans thereunder, “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 applicable Incremental Revolving Credit Commitment and all matters relating thereto.
(c) On any Increased Amount Date (x) on which any 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 an Incremental Term C Loan Commitment (each, a “Incremental Term C Loan Lender”) of any Series shall make a term letter of credit loan to the Borrower (a “Incremental Term C Loan” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, in each case effected pursuant to a Term Loan Increase or Term C Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, 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 Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term 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 Loan Commitments or Incremental Term C Loan Commitments may be paid in connection with such Incremental Term Loan Commitments or Incremental Term C Loan Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related term letter of credit 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. Any Incremental Loans incurred as a Term Loan Increase or Term C Loan Increase, as applicable, shall be fungible for the U.S. federal income tax purposes with the existing Class of Term Loans or Term C Loans, as applicable, proposed to be increased thereby. The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans of any Series not effected pursuant to a Term Loan Increase or Term C Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that:
(i) [reserved];
(ii) [reserved];
(iii) the Incremental Term Loans, Incremental Term Loan Commitments, Incremental Term C Loans and Incremental Term C Loan Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and 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 Loans hereunder; provided that if such Incremental Term Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to security with the First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable);
(iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental Term Loans or Incremental Term C Loans shall be determined by the Borrower and the lender(s) thereunder; provided, however, that, with respect to any broadly syndicated Dollar-denominated Incremental Term Loans or Incremental Term C Loans made under Incremental Term Loan Commitments or Incremental Term C Loan Commitments, if the Yield in respect of any Incremental Term Loans or Incremental Term C Loans that rank pari passu in right of payment and security with the Initial Term Loans, the Initial Term C Loans, the 2016 Incremental Term Loans and the 20182018 Incremental Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans, or 2018the 2018 Incremental Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable Term SOFR Margin, as applicable, in respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, shall be adjusted so that the Yield in respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, is equal to the Yield in respect of such Incremental Term Loans or Incremental Term C Loans minus 0.50%; provided, further, to the extent any change in the Yield of the Initial Term Loans, the Initial Term C Loans, the 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, is necessitated by this clause (iv) on the basis of an effective interest rate floor in respect of the Incremental Term Loans or Incremental Term C Loans, the increased Yield in the Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, shall (unless otherwise agreed in writing by the Borrower) have such increase in the Yield effected solely by increases in the interest rate floor(s) applicable to the Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable (this clause (iv), the “Incremental LoansMFN Adjustment”); provided and provided, further, that no existing Lender will have an obligation the MFN Adjustment shall not apply to make any Incremental Facility, nor will Term Loans or Incremental Term C Loans (a) that mature on or after the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess twelve month anniversary of the sum of2018 Incremental Term Loan Maturity Date, (b) that are incurred after the twelve month anniversary of the Fifteenth Amendment Effective Date, (c) that are incurred in reliance on the Incremental Fixed Dollar Basket or (d) the proceeds of which are used to consummate a Permitted Acquisition (clauses (a) through (d) of this proviso, collectively, the “MFN Exceptions”); and
(v) all other terms of any Incrementa
Appears in 1 contract
Sources: Credit Agreement (Vistra Corp.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more new tranches (x) additional term loans, which may be of term facilities denominated in Dollars the same Class as any then-existing Term Loans (each, a “New Term Loan FacilityIncrease”) or a separate Class of Term Loans (the commitments for additional term loans of the same Class or 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 increase the principal amount (z) revolving credit commitments, which may be of the Initial Term Loanssame Class as any then-existing Revolving Credit Commitments (the commitments thereto, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any the “New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term LoansRevolving Credit Commitments”) and/or request the establishment of one or more new tranches a separate Class of Revolving Credit Commitments (eachthe commitments thereto, a the “New Additional Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit FacilityCommitments” and, together with any Incremental Term Facility, “Incremental Facilities” andthe New Revolving Credit Commitments, the loans thereunder, “Incremental Revolving Credit Loans” and, Commitments”; together with any the Incremental Term LoansLoan Commitments and the Incremental Term C Loan Commitments, the “Incremental LoansLoan Commitments”), by an aggregate 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 at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to 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 Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders Lender to provide any Incremental FacilityLoan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments 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, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (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 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 an aggregate amount not 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 excess all material respects if requested by the Persons holding more than 50% of the sum ofapplicable Incremental Loans or Incremental Loan Commitments), (iii) the Incremental Loan Commitments shall be effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, 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 Loan Commitments, as applicable. 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 Loans made on an Increased Amount Date shall be designated (x) 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”).
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)
Incremental Facilities. (a) The CompanyBorrowers or any Guarantor or, or if agreed by all solely in the case of a New Term Loan Facility denominated in an Alternative Currency, any Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Lenders under the applicable Incremental Facility, a Guarantor Administrative Agent (any such Guarantor, Guarantor or Restricted Subsidiary for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment of one or more new tranches of term facilities denominated in Dollars Dollars, an Alternative Currency or any other currency agreed to by the applicable Borrower, the Administrative Agent and the Lenders providing such New Term Loan Facility (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company Borrower have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofof (x) the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) and (ii) 100% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding, less any amount of Indebtedness incurred pursuant to clause (x)(i) of Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, (i) in case of Incremental Facilities that are secured on a pari passu basis with the Obligations, the First Lien Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (ii) in case of Incremental Facilities that are secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (iii) in case of Incremental Facilities that are unsecured, the Fixed Charge Coverage Ratio is greater than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Credit Facilities are fully drawn) and, in each instance, for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that Incremental Facilities (1) shall be incurred pursuant to clause (y) above prior to utilization of any capacity pursuant to clause (x) above, (2) amounts incurred in reliance on clause (x) above concurrently with amounts incurred in reliance on clause (y) above shall not be included as Indebtedness in the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, for purposes of calculating any amounts that may be incurred pursuant to clause (y) above on the same day and (3) if all or any portion of any Incremental Facility was originally incurred or issued in reliance on clause (x) above and thereafter such amount could have been incurred pursuant to clause (y) above, such amount of such Incremental Facility shall be reclassified, as the applicable Borrower may elect from time to time, as having been incurred pursuant to clause (y) above and thereafter shall not count as utilization of clause (x) above; provided, further, that, notwithstanding the foregoing or anything to the contrary set forth herein, (1) Incremental Term Loans may be incurred without regard to any of the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on or about the date of incurrence to permanently prepay and refinance Term Loans of any Tranche selected by the applicable Borrower on a dollar-for-dollar basis, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso, and (2) New Revolving Credit Facilities may be incurred without regard to the foregoing limits to the extent that such New Revolving Credit Facilities are used on or about the date of incurrence to refinance and permanently reduce Revolving Credit Commitments of any Tranche selected by Borrower on a dollar-for-dollar basis, and any such Revolving Credit Commitments thereunder (the “Refinancing Incremental Revolving Credit Commitments”) shall be deemed to have been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the applicable Incremental Facility 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 (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) and by the L/C Issuer to the extent such consent, if any, would be required under Section 11.06 for an assignment of Loans or Revolving Credit Commitments (any such Affiliate or other Person, a “New Incremental Lender”) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the amounts of such allocations and (iii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Credit Facility. Such Incremental Facility shall become effective as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Facility (except that, with respect to this clause (A), solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist), (B) both before and after giving effect to such Incremental Facility, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid (except, solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, (x) with respect to Section 5.02(a), such Incremental Facility shall only be subject to customary “funds certain provisions” and (y) with respect to Section 5.02(b), such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist); (C) any Incremental Facility provided by any New Incremental Lender shall be effected pursuant to one or more joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by a Borrower (or Additional Borrower, if applicable) and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers 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.
(b) The creation or provision of any Incremental Facility or Incremental Loan (and, in connection therewith, any amendment to the terms of this Agreement that is necessary or appropriate to implement the provisions thereof or that is favorable to the then-existing Lenders, in each case, as reasonably determined by the Administrative Agent in its sole discretion) shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment.
(c) The terms and provisions of any New Revolving Credit Facility (other than pricing, maturity and fees) shall be, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the existing Revolving Credit Facility; provided that, (i) no New Revolving Credit Facility shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date of any Tranche of Revolving Credit Loans (or, in the case of Refinancing Incremental Revolving Credit Commitments, the final maturity date of the Tranche of Revolving Credit Commitments that are being refinanced), (ii) any guarantor of any New Revolving Credit Facility shall also be a Guarantor; provided, that, in the event any New Revolving Credit Facility is incurred by a Foreign Subsidiary of ESI, such New Revolving Credit Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (iii) if secured, such New Revolving Credit Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is materially more restrictive, when taken as a whole, to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent and (iv) each New Revolving Credit Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent).
(d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Tranche B-12 Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the Tranche B-12 Term Loans, as applicable; provided that, except as otherwise set forth herein or in the joinder agreement set forth in clause (a), then (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity of the Tranche B-12 Term Loans, (or, in the case of any New Term Loans that are Refinancing Incremental Term Loans, the weighted average life to maturity of the Tranche of Term Loans that are being refinanced), (ii) the final maturity date with respect to any New Term Loans shall be no earlier than the maturity date of the Tranche B-12 Term Loans (or, in the case of any New Term Loans that are refinancing Incremental Term Loans, the final maturity date of the Tranche of Term Loans that are being refinanced), (iii) if the Yield on any New Term Loans incurred no later than 126 months after the ClosingAmendment No. 8 Funding Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Rate then in effect for any Tranche B-2 Term Loans, then the Applicable Rate then in effect for Tranche B-2 Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term Loans (and if the margins on the New Term Loans are subject to a leveraged-based pricing grid, appropriate increases to the Applicable Rates for the Tranche B-2 Term Loans, consistent with the foregoing, shall be made) (this clause (iii), the “MFN Adjustment”), (iv) any guarantor of any New Term Loan Facility shall also be a Guarantor; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (v) if secured, such New Term Loan Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is more restrictive to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (vi) each New Term Loan Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (vii) any New Term Loan Facility may be denominated in Euros or Pounds Sterling so long as (A) the borrower thereunder is a Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent and (B) such New Term Loan Facility is subject to guarantee, collateral and collateral allocation arrangements that are reasonably satisfactory to ESI and the Administrative Agent. Each joinder agreement referred to in Section 2.14(a) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, as reasonably determined by the Administrative Agent in its sole discretion, to effect the provision of this Section 2.14.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Tranche B-12 Term Loans or Initial Revolving Credit Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B-12 Term Loans or Initial Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Term SOFR Loan to be converted into a Base Rate Loan on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Term SOFR Loan, EURIBO Rate Loan or RFR Loan on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Term SOFR Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans are to be allocated to an existing Interest Period for a Term SOFR Loan or EURIBO Rate Loan then, subject to Section 2.08(b), the interest rate applicable to such Incrementa
Appears in 1 contract
Incremental Facilities. (a) The Company, Borrower may from time to time on or if agreed by all of after the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) mayFourth Amendment Closing Date, by written notice to the Administrative Agent, request (i) an increase to the existing Revolving Commitments (any such increase, the “New Revolving Commitments” and any Revolving Loans thereunder, the “New Revolving Loans”) and/or (ii) an increase to an existing Class of Term Loans and/or the establishment of one or more new tranches of term facilities denominated in Dollars Term Loan Commitments hereunder (the “New Term Loan Commitments,” and collectively with any New Revolving Commitments, the “New Commitments” and each, individually, a “New Term Loan FacilityCommitment”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilitycase, by an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofof (x) from and after the Fourth Amendment Closing Date, $360,000,000 in the aggregate plus (y) the aggregate principal amount of additional New Commitments so long as, on a Pro Forma Basis (assuming, in the case of any New Commitments, that the entire amount of such New Revolving Commitments and New Term Loan Commitments were fully funded on the effective date of such increase and excluding the cash proceeds received by the Borrower in respect of any such New Commitments) and after giving effect to any Permitted Acquisitions and any Limited Conditionality Acquisition (if applicable pursuant to Section 1.5) consummated in connection therewith, (1) in the case of loans under such New Commitments secured by Liens on the Collateral that rank pari passu with the liens on the Collateral securing the Facilities (other than any such Liens that are junior), the First Lien Net Leverage Ratio on a Pro Forma Basis does not exceed 4.00 to 1.00 and (2) in the case of loans under such New Commitments secured by Liens that rank junior to the Liens on the Collateral securing the Facilities, the Senior Secured Net Leverage Ratio on a Pro Forma Basis does not exceed 5.50 to 1.00, plus (z) the aggregate amount of all voluntary prepayments of the Term Loans outstanding on the Fourth Amendment Closing Date and Revolving Loans pursuant to Section 2.11 (and accompanied by a reduction of the Revolving Commitments pursuant to Section 2.8(b) in the case of a prepayment of Revolving Loans) made prior to such time except to the extent funded with the proceeds of Indebtedness; provided, however, that notwithstanding the foregoing, the Borrower may, at any time following the Fourth Amendment Closing Date and on or prior to the earlier of (i) June 30, 2020 and (ii) the Taurus Special Mandatory Prepayment request the establishment of one or
Appears in 1 contract
Sources: Credit Agreement (E.W. SCRIPPS Co)
Incremental Facilities. (a) The Company, Borrower may at any time or if agreed by all of from time to time after the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) mayEffective Date, by written notice delivered to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the establishment of (i) one or more new tranches term loans which may be the same Class as any outstanding Class of term facilities denominated in Dollars Term Loans (each, a “New Term Loan FacilityIncrease”) and/or increase one or more new Classes of term loans (collectively, with any Term Loan Increase (and including the principal amount of the Initial Term Loans, any Incremental Tranche B Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New and Tranche B-1 Term Loans), the “Incremental Term Loans”), (ii) and/or request the establishment of one or more new tranches increases in the amount of the Revolving Credit Commitments of any Class (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilityeach such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments (the “Additional/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” (including therein the Tranche B Term Loan Facility and Tranche B-1 Term Loan Facility, and the Tranche B Term Loan Commitments and the Tranche B-1 Term Loan Commitments, respectively)); provided that: 104
(i) after giving effect to the effectiveness of any Incremental Agreement referred to below, except as set forth in the proviso to clause (b) below, no Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving effect thereto), no Event of Default shall exist; provided that, with respect to any Incremental Agreement the primary purpose of which is to finance a Permitted Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the Capital Stock of, another Person, this clause (i) may be waived or omitted by Incremental Lenders holding more than 50% of the aggregate Incremental Commitments under such Incremental Agreement (other than with respect to the absence of any Event of Default under Section 11.1 or Section 11.5, which requirement may not be waived by such Incremental Lenders); and
(ii) after giving effect to the incurrence of such Incremental Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and after giving effect to any Specified Transaction to be consummated in connection therewith), the Borrower and the Restricted Subsidiaries would be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the incurrence of any such Incremental Facilities, calculated on a Pro Forma Basis, in each case as if such Incremental Term Loans, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitments, as applicable, had been outstanding (and any related transactions had occurred) on the first day of such Test Period.
(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 following the Effective Date, 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, of the sum of (A) the greater of $500,000,000 and an amount equal to 100% of Consolidated EBITDA for the Test Period most recently then-ended for which the Section 9.1 Financials required by Section 9.1(a) or Section 9.1(b) have actually been delivered (minus, the aggregate principal amount of all Permitted Additional Debt incurred under clause (A) of the proviso to Section 10.1(v)(ii) at any time following the Effective Date), plus (B) an aggregate additional amount of Indebtedness, such that, after giving Pro Forma Effect to such incurrence or issuance (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitments then outstanding were fully drawn (except to the extent that such Incremental Revolving Credit Commitments refinanced or replaced all or any portion of the Revolving Credit Commitments outstanding on the Effective Date))) the Borrower would be in compliance with a Consolidated Secured Debt to Consolidated EBITDA Ratio as 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 transaction) had occurred on the first day of such Test Period, that is no greater than 4.0:1.0 (the amounts under clause (A), the “Free and Clear Incremental Amount” and the amounts under clause (B), the “Incurrence-Based Incremental Amount” and, together with the Free and Clear Incremental Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be incurred without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, and 105 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 5.2(a)(i) and subject to the payment of premiums set forth in Section 5.1(b), if applicable, (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, and without regard to whether an Event of Default has occurred and is continuing, to the 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 and (iii) the Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof in accordance with Section 1.2(m) (and, absent such election, shall be deemed to have used the Incurrence-Based Incremental Amount). Without limiting the foregoing, all or any portion of the Free and Clear Incremental Amount incurred concurrently with all or any portion of the Incurrence-Based Incremental Amount shall not count as Indebtedness for the purposes of calculating the applicable ratio pursuant to the Incurrence-Based Incremental Amount in accordance with Section 1.2(m).
(c) (i) The Incremental Term Loans (I) shall rank pari passu in right of payment and of security with the Tranche B-1 Term Loans, (II) shall not mature earlier than the Tranche B-1 Term Loan Maturity Date, (III) shall not have a shorter Weighted Average Life to Maturity than the Tranche B-1 Term Loan Facility, (IV) shall have an amortization schedule (subject to clause (III) above), 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, however, that if the Effective Yield in respect of any Incremental Term FacilityLoans that rank pari passu in right of payment and security with the Tranche B-1 Term Loans as of the date of funding thereof and established on or prior to the Tranche B-1 Term Loan Maturity Date exceeds the Effective Yield in respect of the Tranche B-1 Term Loans by more than 0.50%, “then the Applicable Margin in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Tranche B-1 Term Loans is equal to the Effective Yield of the Incremental Facilities” andTerm Loans minus 0.50%; provided, further, to the loans thereunder, “Incremental Revolving Credit Loans” and, together with extent that any change in the Effective Yield of the Tranche B-1 Term Loans is necessitated by this clause (c)(i) on the basis of an effective interest rate floor in respect of the Incremental Term Loans, “Incremental the increased Effective Yield in the Tranche B-1 Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Effective Yield effected solely by increases in the interest rate floor(s) applicable to the Tranche B-1 Term Loans and (V) may otherwise have terms and conditions different from those of the Tranche B-1 Term Loans”); provided that (except with respect to matters contemplated by subclauses (II), (III) and (IV) in above) any differences shall be reasonably satisfactory to the Administrative Agent. 106
(i) The Incremental Revolving Credit Commitment Increase shall be treated 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.
(ii) The Additional/Replacement Revolving Credit Commitments (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, (ii) shall not mature earlier than the Revolving Credit Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Credit Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts and prepayment premiums as determined by the Borrower and the lenders of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments, (v) 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 (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that (except with respect to matters contemplated by clauses (ii), (iii), (iv) and (v) above) any differences shall be reasonably satisfactory to the Administrative Agent.
(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 Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental FacilityTerm Loan, nor no existing Lender with a Revolving Credit Commitment will the Company have any obligation to approach provide a portion of any Incremental Revolving Credit Commitment Increase and no existing Lenders Lender with an 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, other institutional lender or other investor (any such other bank, 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 any Incremental FacilityRevolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, each Swingline Lender and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld) to such Additional ▇▇▇▇▇▇’s providing such Incremental Revolving Credit Commitment Increases or 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. 107
(e) Commitments in respect of Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit 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 Agreement”) to this Agreement and, as appropriate, the 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 such amendments to this Agreement and the other Credit Documents as may be necessary, in an aggregate amount not in excess the reasonable opinion of the sum ofAdministrative Agent and the Borrower, to effect the 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” (including the Second Amendment Effective Date, the Fourth Amendment Effective Date and, the Fifth Amendment Effective Date and the Seventh Amendment Effective Date)), and the occurrence of any Credit Events pursuant to such Incremental Agreement, shall be subject to the satisfaction of such conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments for any purpose not prohibited by this Agreement; provided that the proceeds of any Incremental Term Loans incurred, and any Additional/Replacement Revolving Credit Commitments provided, in either case as described in the proviso to Section 2.14(b), shall be used in accordance with the terms thereof.
Appears in 1 contract
Incremental Facilities. Borrower may (a) The Companyby written notice from Borrower to Revolving Facility Administrative Agent, or if agreed by all of elect to request prior to the Lenders under Revolving Commitment Termination Date, an increase to the applicable Incremental Facility, a Guarantor existing Revolving Commitments (any such Guarantorincrease, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional BorrowerNew Revolving Loan Commitments”) may, and/or (b) by written notice from Borrower to the Term Administrative AgentAgent elect to request prior to the Maturity Date, request the establishment of one or more new tranches of term facilities denominated in Dollars loan commitments (each, a the “New Term Loan FacilityCommitments”) and/or increase the ), in an aggregate principal amount of (i) the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan FacilityCommitments and the New Revolving Loan Commitments, (ii) the aggregate principal amount of Debt Incurred pursuant to Sections 6.1(b)(xxiii) and (xxiv) not in excess of (A) the aggregate principal amount of (x) New Term Loan Commitments incurred pursuant to the First Joinder Agreement and (y) New Term Loan Commitments and the New Revolving Loan Commitments incurred on the Amendment and Restatement Date pursuant to the Amendment Agreement, plus (B) $100,000,000 in the aggregate pursuant to this clause (B) prior to date of determination plus (C) 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 4.50:1.00 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 (and excluding the proceeds of any 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 Loan 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), and integral multiples of $1,000,000 in excess of that amount. Each such notice shall specify the date (each, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any Increased Amount Date”) on which Borrower proposes that the New Revolving Loan Commitments or New Term Loans)Loan Commitments, “Incremental as applicable, 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 Term Loans”) and/or request Administrative Agent or such shorter period of time as consented to by the establishment of one Term Administrative Agent. Borrower may invite any Lender or more new tranches of Revolving Credit Commitments other Person that is an Eligible Assignee (each, a “New Revolving Credit FacilityLoan Lender” or “New Term Loan Lender”, as applicable) to provide a New Revolving Loan Commitment or New Term Loan Commitment, as applicable; provided that any Lender approached to provide all or a portion of the New Revolving Loan Commitments or 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. Such New Revolving Loan Commitments or New Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; 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 pursuant to clauses (a), (f) or (g) of Section 8.1 shall exist 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 after giving effect to the 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 Permitted Acquisition or other similar Investment, the representations and warranties required under this clause (2) shall be limited only to representations set forth in 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 New Revolving Loan Commitments or New Term Loans Commitments, as applicable; (3) 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 Borrower, the New Revolving Loan Lender 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 2.20(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 be designated a separate series (a “Series”) and/or request of New Term Loans for all purposes of this Agreement. The proceeds of the New Revolving Loan Commitments and New Term Loan Commitments may be applied by Borrower for working capital and general corporate purposes of Parent and its Subsidiaries and any other use not prohibited by this Agreement including, without limitation, the financing of any Permitted Acquisition or similar Investment; provided that the New Revolving Loan Commitments and New Term Loan Commitments shall be not used to prepay any Subordinated Debt. Each of the parties hereto hereby agrees that, unless any New Term Loans constitutes a separate Class of Loans hereunder, Term Administrative Agent may take any and all action as may be reasonably necessary to ensure that all such New Term Loans, when originally made, are Term Loans for all purposes under the Credit Documents and are included in each borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished at the discretion of Term Administrative Agent by allocating a portion of each such New Term Loans to each outstanding Eurodollar Rate Loan of the same Class on a pro rata basis, even though as a result thereof such New Term Loans may effectively have a shorter Interest Period than the Term Loans included in the borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an increase initial Interest Period). If any such New Term Loan is to be allocated to an existing Interest Period for a Eurodollar Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Joinder Agreement. On any Tranche Increased Amount Date on which New Revolving Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Commitments Lenders shall assign to each of the New Revolving Loan Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Loan Commitments to the Revolving Commitments, (b) each New Revolving Loan Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Loan Commitment and all matters relating thereto. 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 New Term Loan Lender of any Series shall make a Loan to Borrower (a “New Term Loan”) 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 (y) the New Revolving Credit FacilityLoan Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, an “Incremental as applicable, and (z) in the case of each notice to any Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” andLender, the loans thereunderrespective interests in such Revolving Lender’s Revolving Loans, “Incremental in each case subject to the assignments contemplated by this Section 2.24. The terms and provisions of the New Revolving Credit Loans shall be identical to the Revolving Loans” and. The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be as set forth herein or in the applicable Joinder Agreement. In any event (i) 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 Revolving Loans or the Initial Term Loans (whichever is longest), together with any Incremental (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, “Incremental (iii) the Weighted Average Yield applicable to the New Term Loans of 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 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 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) all other terms of the New Term Loans and New Term Loan Commitments, if not consistent with the terms of the Initial Term Loans”); provided that no existing Lender will have an obligation , as applicable must be reasonably acceptable to make the Term Administrative Agent. Each Joinder Agreement may, without the consent of any Incremental Facilityother Lenders, nor will effect such amendments to this Agreement and the Company have any obligation to approach any existing Lenders to provide any Incremental Facilityother Credit Documents as may be necessary or appropriate, in an aggregate amount not in excess the opinion of the sum ofapplicable Administrative Agent to effect the provision of this Section 2.24.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Nord Anglia Education, Inc.)
Incremental Facilities. (ai) The CompanyAfter the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), or if agreed by all of the Lenders under Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, may request the establishment of (x) one or more new (A) additional tranches of term facilities denominated loans or (B) increases (an “Incremental Term Loan Increase”) to an existing tranche of term loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) one or more increases in Dollars the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the proposed use of proceeds thereof, the aggregate amount (the “Maximum Facilities Amount”) of the Facilities (which term, for the avoidance of doubt, shall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed $3,000,000,000 and (ii) after the Restatement Effective Date and before the Final Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental 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. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment, (ii) any entity providing all or a portion of the Incremental Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed) and (iii) any entity providing all or a portion of the Incremental Revolving Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to each Issuing Lender (with such acceptance by the Issuing Lenders to not be unreasonably withheld or delayed).
(b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that
(i) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments,
(ii) the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments and the use of proceeds thereof (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof) and assuming any related Specified Transaction has occurred,
(iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans,
(iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date,
(v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect 55 of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments,
(vi) with respect to the Term Loans (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), if the final maturity date of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) 50 basis ▇▇▇▇▇▇,
(▇▇▇) ▇▇ ▇▇▇ final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and
(viii) the Incremental Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “New Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Facility”) and/or increase Lender or the principal amount Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or the Incremental Synthetic L/C Lender agrees to be bound to the terms of the Initial this Agreement as a Lender. Except for Incremental Term LoansLoans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans or any Extended made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans by requesting new term loan commitments for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. Notwithstanding the foregoing, in the case of any Incremental Loan Commitments implemented to finance a Permitted Acquisition, satisfaction of the conditions set forth in clauses (i) and (ii) may, at the option of the Borrower, be added determined solely as of the date on which the definitive agreement governing such Permitted Acquisition is executed, calculated to give pro forma effect to such acquisition as if it had occurred on such date of determination.
(c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving 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 Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (together y) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility.
(d) On any New Increased Amount Date on which any Incremental Term Loan FacilityCommitments are effected, subject to the satisfaction of the foregoing terms and conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Facility” andLoan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, any and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments Synthetic L/C Commitment (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, Synthetic L/C Lender”; together with any Incremental Revolving Lenders and Incremental Term FacilityLoan Lenders, the “Incremental Facilities” and, the loans thereunder, Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Revolving Credit Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. For the avoidance of doubt, (i) the Tranche A Term Loans constitute Incremental Tranche A Term Loans” and, together with any (ii) the Tranche B Term Loans constitute Incremental Term Loans, “and (iii) the Tranche A Term Lenders shall be Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental FacilityTerm Loan Lenders, in an aggregate amount not in excess each case, for all purposes of this Agreement and the sum ofother Loan Documents.
Appears in 1 contract
Incremental Facilities. (a) The Company(a) Parent Borrower shall have the right, or if agreed by all of but not the Lenders under obligation, after the applicable Incremental FacilityClosing Date, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written upon notice to the Administrative AgentAgent (an “Incremental Borrowing Notice”), request the establishment of to incur one or more new tranches of additional term loan facilities denominated in Dollars (each, a an “New Incremental Term Loan Facility”) or additional revolving facilities (each, an “Incremental Revolving Facility”), or one or more increases in the aggregate commitments under the Initial Revolving Facility (each, an “Incremental Revolving Increase”) (which may, with respect to any Incremental Revolving Facility or any Incremental Revolving Increase, at the election of Parent Borrower and with the consent of the LC Issuer, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed), the Swing Line Commitment) (each, an “Incremental Initial Revolving Facility,” the loans thereunder, the “Incremental Initial Revolving Loans”) (and each of the foregoing, an “Incremental Facility” and collectively, the “Incremental Facilities”), in each case sharing in the Collateral (as defined below) on a pari passu or junior basis, in an aggregate amount of up to (x) $30.0 million minus the aggregate amount of Indebtedness incurred in reliance on clause (a)(x) of the definition of “Permitted Incremental Indebtedness,” plus (y) unlimited additional amounts so long as after giving effect to the incurrence of the Loans in respect of such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments (assuming the full amount thereof is drawn) and/or Permitted Incremental Indebtedness incurred under Section 7.03(w) and after giving effect to any Specified Transaction that may be consummated in connection therewith, the Leverage Ratio (calculated on a Pro Forma Basis and provided that (A) all Permitted Incremental Indebtedness incurred under Section 7.03(w) shall also be included in such calculation for this purpose, whether or not it would otherwise be included and (B) the proceeds of the Incremental Facility being incurred shall not be netted against indebtedness for purposes of the calculation relating to such incurrence) shall not be greater than 3.00 to 1.00; provided that (a) no commitment of any Lender may be increased without the consent of such Lender, (b) no Event of Default exists after giving effect thereto (provided, however, that if the proceeds of such Incremental Facilities are used to finance a Permitted Acquisition or other Investment permitted by this Agreement (and costs reasonably related thereto), it shall only be required that no Specified Event of Default shall be continuing at the time of incurrence), (c) except in the case of an Incremental Facility the proceeds of which are used to finance a Permitted Acquisition or other permitted Investment, the Parent Borrower shall be in compliance with the covenant under Section 7.06(a), (d) any Incremental Facility that is an increase in the aggregate amount of the Initial Revolving Commitment shall be on the same terms and pursuant to the same documentation as the Initial Revolving Commitment, (e) the yield applicable to any Incremental Initial Revolving Facility shall be equal to the corresponding yield on the Initial Revolving Facility (calculated for such Incremental Initial Revolving Facility and Initial Revolving Facility inclusive of any original issue discount and/or upfront fee percentage paid to all Lenders, but exclusive of any arrangement, underwriting or similar fees); provided, that Parent Borrower may increase the principal pricing of the Initial Revolving Facility, without the consent of the Administrative Agent or any Lender, such that the foregoing is true, including increasing the Applicable Margin, the Commitment Fee, adding or increasing an existing “LIBOR Floor” (if applicable), and paying additional original issue discount and/or upfront fees, (f) in the case of any Incremental Revolving Facility, (i) such Incremental Revolving Facility shall have a final maturity no earlier than the Revolving Facility Termination Date then applicable to the Initial Revolving Facility and (ii) such Incremental Revolving Facility shall provide that (A) the borrowing and repayment (except for (1) payments of interest and fees at different rates on the Incremental Revolving Facility (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Facility and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (C) below)) of Loans with respect to Incremental Revolving Credit Commitments after the effectiveness of such Incremental Revolving Facility shall be made on a pro rata basis with all other Revolving Credit Commitments on the date of effectiveness of such Incremental Revolving Facility, (B) subject to the provisions of Sections 2.04(e) and 2.05(h) to the extent dealing with Swing Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Facilities with a longer maturity date, all Swing Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments on the effective date of such Incremental Revolving Facility (and except as provided in Section 2.04(e) and Section 2.05(h), without giving effect to changes thereto on an earlier maturity date with respect to Swing Loans and Letters of Credit theretofore incurred or issued), (C) Incremental Revolving Facilities may include provisions relating to swing line 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 swing line lender and letter of credit issuer, as applicable, which shall be determined by the Parent Borrower, the lenders of such commitments and the applicable letter of credit issuers and swing line lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Revolving Credit Assumption Agreement) to the terms relating to Swing Loans and Letters of Credit with respect to the Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (D) assignments and participations of Incremental Revolving Commitments and Loans shall be governed by the same assignment and participation provisions, (g) the yield applicable to any Incremental Term Loan Facility or Incremental Revolving Facility shall not be more than 0.50% higher than the yield on the corresponding Initial Facility (calculated for both such Incremental Facility and the corresponding Initial Facility inclusive of any “LIBOR Floor” (if, applicable), original issue discount and/or upfront fees paid to all Lenders under such Initial Facility, but exclusive of any arrangement, underwriting or similar fee paid), unless the yield with respect to the applicable Initial Facility is increased by an amount equal to or greater than the difference between the yield with respect to the Incremental Facility and the corresponding yield on such Initial Facility minus 0.50% (for purposes of determining the difference in “yield” as to such Incremental Facility and the corresponding Initial Facility, yield shall be calculated by adding the difference with respect to such Incremental Facility and such corresponding Initial Facility of each of the following: (i) Applicable Revolving Loan Margin or Applicable Term Loan Margin, as applicable, (ii) “LIBOR floor”, which shall be equated to yield by taking the difference of (A) the “LIBOR floor” of such facility and (B) the 3-month Adjusted Eurodollar Rate as of a date ten (10) Business Days prior to the closing of such Incremental Facility and (iii) original issue discount and/or upfront fees, which shall be equated to yield by dividing such original issue discount and/or upfront fee percentage (as of the date such facility was funded, in each case), by four (4) (provided, that for purposes of calculating the yield related to the original issue discount and/or upfront fee percentage of the Incremental Facilities, if the Weighted Average Life to Maturity of the Incremental Facility is shorter than 4 years, the actual Weighted Average Life to Maturity), (h) the maturity of any Incremental Term Loan Facility shall not be earlier than the Latest Maturity Date of the Initial Term Loans, (i) the Weighted Average Life to Maturity of any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to Loan Facility shall not be added to such Loans (together with any New shorter than that of the Initial Term Loan Facility, an “(j) the Incremental Term Loan Facility shall provide that such facility shall be prepaid with the proceeds of mandatory prepayment events on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis) with other then outstanding Initial Term Loans, (k) the covenants, events of default and guarantees of such Incremental Term Loan Facility or Incremental Revolving Facility” and, if not consistent with the terms of the corresponding Initial Facility (A) shall be as mutually agreed upon between Parent Borrower and lenders providing such Incremental Facility and (B) shall not be more restrictive to Parent Borrower, when taken as a whole, than the terms of the corresponding Initial Facility unless (1) Lenders under the corresponding Initial Facility also receive the benefit of such more restrictive terms (without any consent being required) or (2) any such provisions apply after the Latest Maturity Date of the corresponding Initial Facility and (l) (x) Incremental Term Loan Facilities shall be requested in minimum amounts of $2.5 million or a higher multiple of $1.0 million and (y) Incremental Revolving Facilities shall be requested in minimum amounts of $1.0 million or a higher multiple of $1.0 million. The proceeds of each Incremental Facility may be used to finance working capital needs, for general corporate purposes and to finance any transactions permitted by this Agreement. The commitments in respect of any Incremental Facilities may be denominated in U.S. Dollars and/or other currencies as agreed among Parent Borrower, the Administrative Agent and the lenders providing such Incremental Facilities. Each Incremental Borrowing Notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Credit Commitments being requested, (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than five (5) Business Days nor more than sixty (60) days after the date of Incremental Borrowing Notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments, if any, are to be Term Commitments or commitments to make term loans with terms different from the Term Loans made pursuant (“Other Term Loans”).
(b) Any Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The applicable Borrower, each Incremental Term Lender and the Administrative Agent shall execute and deliver an Incremental Term Facility (including Loan Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. The Incremental Term Loan Assumption Agreement may, without the consent of any New other Lenders, effect such amendments to this Agreement and the other Loan Documents that are consistent with and to the extent necessary, in the reasonable opinion of the Administrative Agent and the Parent Borrower, to effect the provisions of this Section 2.18. The Borrowers, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent is required by this Section 2.18 or such consent would be required under Section 11.12(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. Each Incremental Term Loans), “Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Term Loans”) and/or request , Incremental Revolving Loans or Incremental Initial Revolving Loans, as applicable, to be made thereunder, consistent with the establishment provisions set forth in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of one or more new tranches of each Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Commitments Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, or otherwise to effect the provisions of this Section 2.18, notwithstanding any requirements of Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrowers and furnished to the other parties hereto.
(c) Upon each Incremental Revolving Increase, each Lender with a Revolving 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 Facility Increase (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Initial Revolving Facility Lender”) in respect of such increase, and each such Incremental Initial Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit Facility” andand Swing Loans such that, together after giving 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 Swing Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Initial Revolving Facility Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Term Revolving Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.04. 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.
(d) Upon each provision of an Incremental Revolving Facility, “each Lender with a Revolving Commitment immediately prior to the providing of such Incremental Facilities” andRevolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such 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 and Swing Loans such that, after giving effect to such deemed assignment and assumption of participations, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess percentage of the sum ofaggregate outstanding (x) participations hereunde
Appears in 1 contract
Sources: Credit Agreement (PGT, Inc.)
Incremental Facilities. (a) The CompanyBorrowers (or, any Restricted Subsidiary or if agreed by all Restricted Subsidiaries of the Lenders under the applicable Incremental Facility, any Borrower that is not a Guarantor Borrower (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental FacilityRestricted Subsidiary, an “Additional Borrower”) may, ) may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more new tranches of or term facilities denominated in Dollars Dollars, an Alternative Currency or any other currency agreed to by the applicable Borrower, the Administrative Agent and the Lenders providing such New Term Loan Facility (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an the “Incremental Term Facility” and, and any Loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”” ) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, and the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the greater of (x) $300,000,000 (or a principal amount equal to the Dollar Equivalent of $300,000,000) less any amount of Indebtedness incurred pursuant to Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, the First Lien Net Leverage Ratio is less than or equal to 4.50:1.00 on a Pro Forma Basis (assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Facilities are fully drawn) and, in each instance for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that, notwithstanding the foregoing or anything to the contrary set forth herein, Incremental Term Loans may be incurred without regard to the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on the date of incurrence to permanently prepay and refinance on a dollar-for-dollar basis Term Loans of any Tranche selected by the Borrower, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso and Incremental Term Loans may be incurred to permanently prepay and refinance on a dollar-for-dollar basis Term Loans of any Tranche selected by Borrower. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrowers propose that the applicable Incremental Facility 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 (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) (each such Affiliate or other Person, a “New Loan Lender”) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the amounts of such allocations and (iii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Facility. Such Incremental Facility shall become effective, as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Loans; provided, that with respect to this clause (A), solely to the extent the proceeds of such Incremental Facility are being or will be used to finance an Investment permitted hereunder and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under only Sections 9.01(a), (f) or (g) hereunder shall exist, (B) both before and after giving effect to the making of any such Incremental Loans, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid; provided, further that, (x) with respect to Section 5.02(a), solely to the extent the proceeds of such Incremental Facility are being or will be used to finance an Investment permitted hereunder, such Investment shall only be subject to customary “funds certain provisions”, if agreed to by the lenders providing such Incremental Facility and (y) with respect to Section 5.02(b), solely to the extent the proceeds of such Incremental Facility are being or will be used to finance an Investment permitted hereunder and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under only Sections 9.01(a), (f) or (g) hereunder shall exist; (C) any Incremental Facility provided by any New Loan Lender shall be effected pursuant to one or more joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by the Borrowers and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers 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.
(b) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment.
(c) The terms and provisions of any Incremental Revolving Facility shall be, except as otherwise set forth herein, identical to the existing Dollar Revolving Credit Facility or Multicurrency Revolving Credit Facility, as applicable.
(d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Tranche B-6 Term Loans, Tranche B-7 Term Loans, Euro Tranche C-5 Term Loans or Euro Tranche C-6 Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in clause (a) above, identical to the Tranche B-6 Term Loans, Tranche B-7 Term Loans, Euro Tranche C-5 Term Loans or Euro Tranche C-6 Term Loans, as applicable; provided that, (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity of the Term Loans, (ii) the final maturity date of with respect to any New Term Loans shall be no shorter than the Latest Maturity Date, (iii) if the initial yield on any New Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the Applicable Rate in effect for the Eurocurrency Rate for such New Term Loans and (y) if the New Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from PSP or any of its Restricted Subsidiaries for doing so (the amount of such fee, expressed as a percentage of the Incremental Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such New Term Loans and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Rate then in effect for any Eurocurrency Rate Term Loans, then the Applicable Rate then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term Loans (and if the Eurocurrency Rate margins on the New Term Loans are subject to a leveraged-based pricing grid, appropriate increases to the other Applicable Rates for the Term Loans, consistent with the foregoing, shall be made) (for the avoidance of doubt, it is understood and agreed that the foregoing calculation shall be made, on any Increased Amount Date on which Incremental Term Facilities denominated in both Dollars and Euros are established, by comparing (x) the initial yield on the Incremental Term Loans denominated in Dollars made on such Increased Amount Date to the Applicable Rate then in effect for the outstanding Term Loans denominated in Dollars made prior to such Increased Amount Date and (y) the initial yield on the Incremental Term Loans denominated in Euros made on such Increased Amount Date to the Applicable Rate then in effect for the outstanding Term Loans denominated in Euros made prior to such Increased Amount Date), (iv) any New Term Loan Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Term Loans or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent); provided, that, in the event the New Term Loan Facility is incurred by a Foreign Subsidiary of PSP, such New Term Loan Facility shall be permitted to be secured by assets in accordance with the Agreed Security Principles and otherwise described in Section 7.12 which assets may or may not also secure other Tranches of Term Loans. Each joinder agreement referred to in clause (a) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Tranche B-6 Term Loans, Tranche B-7 Term Loans, Euro Tranche C-5 Term Loans, Euro Tranche C-6 Term Loans, Multicurrency Revolving Credit Loans or Dollar Revolving Credit Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B-6 Term Loans, Tranche B-7 Term Loans, Euro Tranche C-5 Term Loans, Euro Tranche C-6 Term Loans, Multicurrency Revolving Credit Loans or Dollar Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Eurocurrency Rate Borrowing to be converted into a Base Rate Borrowing on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Eurocurrency Rate Borrowing on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Eurocurrency Rate Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans is to be allocated to an existing Interest Period for a Eurocurrency Rate Borrowing then, subject to Section 2.08(b), the interest rate applicable to such Incremental Loan for the remainder of such Interest Period shall equal the Eurocurrency Rate for a period approximately equal to the remainder of such Interest Period (as determined by the Administrative Agent two Business Days before the date such Incremental Loan is made) plus the Applicable Rate then in effect. In addition, to the extent any Incremental Term Loans are to be additional Tranche B-6 Term Loans, Tranche B-7 Term Loans, Euro Tranche C-5 Term Loans or Euro Tranche C-6 Term Loans, the applicable scheduled amortization payments under Section 2.07 required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
(f) Prior to the Increased Amount Date, if the Restricted Subsidiary incurring the Incremental Facility is an Additional Borrower, (i) such Subsidiary shall deliver to the Lenders providing the Incremental Facility (including any New Loan Lender) and the Administrative Agent, such documentation and other information reasonably requested by such Lenders or the Administrative Agent for purposes of complying with all necessary “know-your-customer” or other similar checks under all applicable laws and regulations and no written objection submitted by any of the Lenders or the Administrative Agent within five (5) Business Days of the date of receipt of such documentation and other information shall have been given by such Lenders or the Administrative Agent and (ii) if such Additional Borrower is organized or incorporated in or under the laws of, or for applicable Tax purposes is resident of or treated as engaged in a trade or business in, any jurisdiction other than a jurisdiction in or under the laws of which at least one of the then-existing Borrowers is organized or incorporated on the date such Restricted Subsidiary becomes an Additional Borrower, the Administrative Agent may amend this Agreement (which amendments may include, without limitation, Section 3.01 and the definition of “Non-Excluded Taxes” and the Agreed Security Principles) and the other Loan Documents to include such Subsidiary as an Additional Borrower hereunder, which amendment must be mutually agreed to by the Administrative Agent, the Borrowers, the applicable Additional Borrower, and the Lenders providing the Incremental Facility but without the consent of any other Lender (provided that no such amendment shall materially adversely affect the rights of any Lender that has not consented to such amendment); provided that (a) subject to the Agreed Security Principles, each Additional Borrower shall also be a Guarantor and (b) neither the Administrative Agent nor any Lender shall be materially adversely affected by the addition of such Additional Borrower. Any obligations in respect of borrowings by any Borrower under this Agreement will constitute “Obligations” for all purposes of the Loan Documents. If the New Term Loan Facility is incurred in a currency other than Dollars or an Alternative Currency, this Agreement may be amended to reflect such new currency hereunder, which amendment must be mutually agreed to by the Administrative Agent and MacDermid.
(g) For the avoidance of doubt, no amendment, waiver or consent pursuant to Section 11.01 shall impose any greater restriction on the ability of any Lender to assign any of its rights or obligations hereunder with respect to any New Term Loan Facility without the written consent of the holders of a majority of the aggregate unpaid principal amount of such Term Loan Commitments and New Term Loans outstanding under such New Term Loan Facility.
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Incremental Facilities. (ai) The CompanyAfter the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans), or if agreed by all of the Lenders under Revolving Termination Date (with respect to Revolving Loans), as applicable, the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, may request the establishment of (x) one or more new (A) additional tranches of term facilities denominated loans or (B) increases (an “Incremental Term Loan Increase”) to an existing tranche of term loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) one or more increases in Dollars the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the proposed use of proceeds thereof, the aggregate amount (the “Maximum Facilities Amount”) of the Facilities (which term, for the avoidance of doubt, shall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed the greater of (A) $3,000,000,000 and (B) an amount equal to 350% of Consolidated EBITDA, determined to give pro forma effect to any related transactions consummated concurrently therewith, for the mostly recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 6.1 (ii) after the Restatement Effective Date and before the Final Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $500,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental 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. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment, (ii) any entity providing all or a portion of the Incremental Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed) and (iii) any entity providing all or a portion of the Incremental Revolving Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to each Issuing Lender (with such acceptance by the Issuing Lenders to not be unreasonably withheld or delayed).
(b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that
(i) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments,
(ii) the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 6.1 after giving effect to such Incremental Commitments and the use of proceeds thereof (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof) and assuming any related Specified Transaction has occurred,
(iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans,
(iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date,
(v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments,
(vi) with respect to the Term Loans (other than any Incremental Tranche A Term Loans), if the final maturity date of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than any Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above (but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
(▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above (but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and
(viii) the Incremental Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “New Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Facility”) and/or increase Lender or the principal amount Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or the Incremental Synthetic L/C Lender agrees to be bound to the terms of the Initial this Agreement as a Lender. Except for Incremental Term LoansLoans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans or any Extended made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans by requesting new term loan commitments for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. Notwithstanding the foregoing, in the case of any Incremental Loan Commitments implemented to finance a Permitted Acquisition, satisfaction of the conditions set forth in clauses (i) and (ii) may, at the option of the Borrower, be added determined solely as of the date on which the definitive agreement governing such Permitted Acquisition is executed, calculated to give pro forma effect to such acquisition as if it had occurred on such date of determination.
(c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving 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 Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (together y) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility.
(d) On any New Increased Amount Date on which any Incremental Term Loan FacilityCommitments are effected, subject to the satisfaction of the foregoing terms and conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Facility” andLoan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, any and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments Synthetic L/C Commitment (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, Synthetic L/C Lender”; together with any Incremental Revolving Lenders and Incremental Term FacilityLoan Lenders, the “Incremental Facilities” andLenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. For the avoidance of doubt, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Tranche B Term Loans constitute Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will Loans for all purposes of this Agreement and the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofother Loan Documents.
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Incremental Facilities. (a) The Company, Borrower or if agreed by all of any other Guarantor may at any time or from time to time after the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) mayClosing Date, by written notice delivered to the Administrative Agent, Agent request the establishment of (i) one or more new tranches additional Classes of term facilities denominated loans, which may be provided in Dollars (eachDollars, a “New Term Loan Facility”) and/or increase the principal amount or in any Alternative Currency, as applicable, or additional term loans of the Initial Term Loanssame Class of any existing Class of term loans, any Incremental Term Loans or any Extended Term Loans by requesting new which may be provided in the same currency as the existing Class of term loan commitments to be added to such Loans loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), the “Incremental Term Loans”), (ii) and/or request the establishment of one or more new tranches increases in the amount of the Revolving Credit Commitments of any Class (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilityeach 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 “Additional/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”); -119- #95203802v2296160609v3 #96160609v5
(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, ¥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 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) 4.50:1.00 or (y) 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 any the Incremental Term FacilityBase Amount, the “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental LoansLimit”); provided that no (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 Lender will have 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 obligation amount equal to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not 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). (c)
(i) 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 excess right of payment with the sum ofInitial Term Loans and the 2022 Incremental Term Loans) and shall only be guaranteed by the Credit Parties, (B) -120- #95203802v2296160609v3 #96160609v5
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Sources: Incremental Agreement to Credit Agreement (Snap One Holdings Corp.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) 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 (i) may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent; provided that such Person may not be an Affiliate of the Borrower), the “Incremental Arranger”) specifying the proposed amount, and currency denomination thereof, request (i) an increase in the establishment Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (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 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 tranches revolving credit facilities to the Facilities (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 (iv) the addition of one or more new term loan facilities denominated in Dollars (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) by an amount not to exceed at the time of such incurrence the sum of (x) the greater of (1) the amount of $1,100,000,000 and (2) 75% of Consolidated EBITDA of the Borrower Parties for the four fiscal quarter period most recently then ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, calculated on a Pro Forma Basis for such period , less amounts Incurred under Section 2.15(A) (and any Permitted Refinancings thereof (or successive Permitted Refinancings)) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) and/or increase so long as the principal Maximum First Lien Leverage Requirement is satisfied and (z) an amount equal to all voluntary prepayments of the Initial pari passu Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to Section 2.05(a) and repurchases of pari passu Term Loans made pursuant to the terms hereof and voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) to the extent accompanied by a corresponding, permanent reduction in the Revolving Credit Commitments pursuant to Section 2.06(a), in each case, to the extent not funded with the proceeds of long term Indebtedness (other than to the extent funded with the identifiable unused proceeds of a borrowing made pursuant to the Cash-Capped Incremental Facility within three months from the date of incurrence thereof) less amounts Incurred under Section 2.15(C) (and any Permitted Refinancings thereof (or successive Permitted Refinancings)) (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) $20,000,000 (or equivalent 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 this Section 2.14 and Incremental Equivalent Debt issued pursuant to Section 2.15, (A) the Borrower shall be deemed to have used amounts under the Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facility and the Ratio-Based Incremental Facility, and the Borrower shall be deemed to have used the Ratio-Based Incremental Facility (to the extent permitted by the pro forma calculation of the Consolidated First Lien Net Leverage Ratio) 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 incurred under the Ratio-Based Incremental Facility (to the extent permitted by the pro forma calculation of the Consolidated First Lien Net Leverage Ratio), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Ratio-Based Incremental Facility or the Cash-Capped Incremental Facility), then calculating the incurrence under the Ratio-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 and (C) the Borrower may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, 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 by the amount of such redesignated Indebtedness). The Borrower 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 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 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 reasonable prior written notice thereof and the documentation providing for such New Loan Commitments.
(c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, 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 pursuant to an Incremental Facility Agreement. 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 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.
(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, (including i) no Event of Default (subject to 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 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 (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 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/Interim Debt at the time of Incurrence 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 at the time of Incurrence, 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 at the time of Incurrence, 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 the remaining Weighted Average Life to Maturity 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, or otherwise as shall be reasonably satisfactory to the Incremental Arranger, any such New Term Facility or New Revolving Facility shall have the same terms as the Term Facility or Revolving Credit Facility, respectively; provided, that (x) to the extent such terms are more favorable to the Lenders than comparable terms existing in the Loan Documents, such terms may, in consultation with, and subject to the consent (not to be unreasonably withheld) of, the Administrative Agent, be incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable 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 and (y) otherwise, may be incorporated if reasonably satisfactory to the Administrative Agent, the Incremental Arranger and the Borrower 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 6.15 and/or Section 6.17 with respect to Holdings and the Borrower and each Subsidiary Guarantor (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). Notwithstanding the foregoing, “Incremental Term Loans”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) and/or request On the establishment 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 one or more new tranches of the increase to the Revolving Credit Commitments (each, a “New 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 Facility”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 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) and/or request an increase in if, on the date of such increase, there are any Tranche 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 Commitments Loans made hereunder (together with any New reflecting such increase in Revolving Credit FacilityCommitments), an “Incremental which prepayment shall be accompanied by accrued interest on the Revolving Credit Facility” andLoans 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, together with any Incremental 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 Facility, “Incremental Facilities” and, Loans made under the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental 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, “Incremental Loans”); provided that no existing Lender will have an obligation and notwithstanding anything to make any Incremental Facilitythe contrary set forth in Sections 2.01 and 2.02, nor will 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 Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess relative sizes of the sum ofvarious 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.
(f) (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with the other Facilities, not be guaranteed by any Person that is not the Borrower or Guarantor under each of the other Facilities, and be unsecured, secured either on a first lien “equal and ratable” basis with the other
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Sources: Credit Agreement (Allison Transmission Holdings Inc)
Incremental Facilities. (a) The CompanyBorrowers 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 if agreed (ii) any other Person appointed by all of the Lenders Borrower Representative), the “Incremental Arranger”) with such Facility being (i) an increase in the Commitments under any Revolving Tranche (which shall be on the applicable Incremental Facilitysame terms as, and become part of, the Revolving Tranche proposed to be increased) (each, a Guarantor “Revolving Credit Commitment Increase”), (ii) an increase in any such GuarantorTerm Loan Tranche then outstanding (which shall be on the same terms as, for so long and become part of, the Term Loan Tranche proposed to be increased hereunder (except as loans or commitments remain outstanding under otherwise provided in clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”), (iii) the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment addition of one or more new tranches revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower Representative elects (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 (iv) the addition of one or more new term facilities denominated loan facilities, which may take the form of a delayed draw term loan facility, in Dollars each case, in such currency or currencies as the Borrower Representative elects (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, ; and any Incremental Term Loans or any Extended Term Loans advance made by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (eacha Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit FacilityCommitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of to exceed the sum of:
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Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by Upon written notice to the Administrative AgentAgent (which shall promptly notify the Lenders), at any time after the Closing Date, the Borrower may request the establishment of (i) one or more new additional tranches of term facilities denominated loans or increases in Dollars any then-existing Term Facility (each, a “New other than the Delayed Draw Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, each an “Incremental Term FacilityCommitment” andand all of them, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans)collectively, the “Incremental Term LoansCommitments”) and/or request the establishment of and (ii) one or more new additional tranches of revolving commitments or increases in the aggregate amount of any Class of Revolving Credit Commitments Commitments, including increases in the Letter of Credit Sublimit to the extent consented to by each affected L/C Issuer (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, each an “Incremental Revolving Credit FacilityCommitment” and all of them, collectively, the “Incremental Revolving Credit Commitments” and, together with any the Incremental Term FacilityCommitments, the “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental LoansCommitments”); provided that no existing Lender will have an obligation shall be required to make participate in any Incremental Facility; provided, nor will further, that after giving effect to any such addition, the Company aggregate principal amount of Incremental Commitments that have been added pursuant to this Section 2.14 shall not exceed the sum of (x) the Fixed Dollar Amount minus the aggregate principal amount of (i) all Incremental Second Lien Commitments that have been added pursuant to clause (x) of Section 2.14 of the Second Lien Credit Agreement, (ii) all Permitted Other Indebtedness incurred under clause (x) of the definition thereof and (iii) all Permitted Other Second Lien Indebtedness incurred under clause (x) of the definition thereof, plus (y) the aggregate principal amount of all voluntary terminations of any obligation portion of the Revolving Credit Commitments pursuant to approach Section 2.06(a) and all voluntary prepayments of Term Loans pursuant to Section 2.05(a)(i) and (iv) and Section 10.07(i) (to the extent made by the Borrower or any existing Lenders of its Subsidiaries), in each case made at or prior to provide such time (in each case, other than (i) prepayments of Indebtedness incurred in reliance on clause (z) of this Section 2.14(a) and (ii) prepayments funded with proceeds of Indebtedness) minus the aggregate principal amount of all Permitted Other Indebtedness incurred under clause (y) of the definition thereof, plus (z) such additional amount so long as, after giving effect on a Pro Forma Basis to the incurrence thereof (assuming for such purposes that the entire amount of any such Incremental FacilityCommitments and all previous Incremental Commitments were fully funded) cause the First Lien Net Leverage Ratio (without netting the cash and Cash Equivalents constituting proceeds of the applicable Incremental Facilities) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 6.01(a) or (b) would not exceed 4.00:1.00, and any such addition shall be in an aggregate amount of not less than $5,000,000 or any whole multiple of $1,000,000 in excess thereof. The Borrower may (I) incur Incremental Commitments under clause (x), (y) or (z) of the sum ofsecond proviso of the immediately preceding sentence in such order as it may elect in its sole discretion and shall be allowed to classify under which clause such Incremental Commitments are being incurred at the time of such incurrence, without giving Pro Forma Effect to any Incremental Facilities or any increases of the Term Facility (or any portion thereof) in each case permitted to be incurred under such clauses (x) and (y) that is being incurred concurrently with an incurrence under such clause (z) when calculating the amount of Incremental Commitments (or any portion thereof) that may be incurred pursuant to such clause (z) at such time and (II) later reclassify
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Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) 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 (i) may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent; provided that such Person may not be an Affiliate of the Borrower), the “Incremental Arranger”) specifying the proposed amount, and currency denomination thereof, request (i) an increase in the establishment Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (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 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 tranches revolving credit facilities to the Facilities (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 (iv) the addition of one or more new term loan facilities denominated in Dollars (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) by an amount not to exceed at the time of such incurrence the sum of (x) the greater of (1) the amount of $1,100,000,000 and (2) 75% of Consolidated EBITDA of the Borrower Parties for the four fiscal quarter period most recently then ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, calculated on a Pro Forma Basis for such period , less amounts Incurred under Section 2.15(A) (and any Permitted Refinancings thereof (or successive Permitted Refinancings)) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) and/or increase so long as the principal Maximum First Lien Leverage Requirement is satisfied and (z) an amount equal to all voluntary prepayments of the Initial pari passu Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to Section 2.05(a) and repurchases of pari passu Term Loans made pursuant to the terms hereof and voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) to the extent accompanied by a corresponding, permanent reduction in the Revolving Credit Commitments pursuant to Section 2.06(a), in each case, to the extent not funded with the proceeds of long term Indebtedness (other than to the extent funded with the identifiable unused proceeds of a borrowing made pursuant to the Cash-Capped Incremental Facility within three months from the date of incurrence thereof) less amounts Incurred under Section 2.15(C) (and any Permitted Refinancings thereof (or successive Permitted Refinancings)) (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) $20,000,000 (or equivalent 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 this Section 2.14 and Incremental Equivalent Debt issued pursuant to Section 2.15, (A) the Borrower shall be deemed to have used amounts under the Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facility and the Ratio-Based Incremental Facility, and the Borrower shall be deemed to have used the Ratio-Based Incremental Facility (to the extent permitted by the pro forma calculation of the Consolidated First Lien Net Leverage Ratio) 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 incurred under the Ratio-Based Incremental Facility (to the extent permitted by the pro forma calculation of the Consolidated First Lien Net Leverage Ratio), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Ratio-Based Incremental Facility or the Cash-Capped Incremental Facility), then calculating the incurrence under the Ratio-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 and (C) the Borrower may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, 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 by the amount of such redesignated Indebtedness). The Borrower 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 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 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 reasonable prior written notice thereof and the documentation providing for such New Loan Commitments.
(c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, 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 pursuant to an Incremental Facility Agreement. 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 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.
(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, (including i) no Event of Default (subject to 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 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 (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 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/Interim Debt at the time of Incurrence 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 at the time of Incurrence, 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 at the time of Incurrence, 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 the remaining Weighted Average Life to Maturity 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, or otherwise as shall be reasonably satisfactory to the Incremental Arranger, any such New Term Facility or New Revolving Facility shall have the same terms as the Term Facility or Revolving Credit Facility, respectively; provided, that (x) to the extent such terms are more favorable to the Lenders than comparable terms existing in the Loan Documents, such terms may, in consultation with, and subject to the consent (not to be unreasonably withheld) of, the Administrative Agent, be incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable 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 and (y) otherwise, may be incorporated if reasonably satisfactory to the Administrative Agent, the Incremental Arranger and the Borrower 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 6.15 and/or Section 6.17 with respect to Holdings and the Borrower and each Subsidiary Guarantor (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). Notwithstanding the foregoing, “Incremental Term Loans”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) and/or request On the establishment 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 one or more new tranches of the increase to the Revolving Credit Commitments (each, a “New 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 Facility”▇▇▇▇▇▇’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 will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit ▇▇▇▇▇▇’s Revolving Credit Commitment and (y) and/or request an increase in if, on the date of such increase, there are any Tranche 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 Commitments Loans made hereunder (together with any New reflecting such increase in Revolving Credit FacilityCommitments), an “Incremental which prepayment shall be accompanied by accrued interest on the Revolving Credit Facility” andLoans 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, together with any Incremental 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 Facility, “Incremental Facilities” and, Loans made under the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental 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, “Incremental Loans”); provided that no existing Lender will have an obligation and notwithstanding anything to make any Incremental Facilitythe contrary set forth in Sections 2.01 and 2.02, nor will 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 Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess relative sizes of the sum ofvarious 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.
(f) (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with the other Facilities, not be guaranteed by any Person that is not the Borrower or Guarantor under each of the other Facilities, and be unsecured, secured either on a first lien “equal and ratable” basis with the other
Appears in 1 contract
Sources: Credit Agreement (Allison Transmission Holdings Inc)
Incremental Facilities. Subject to the terms and conditions set forth herein, the Borrower shall have the right, at any time and from time to time, to incur additional Indebtedness under this Agreement in an aggregate amount of up to $100,000,000 (each, an “Incremental Facility”) which may be borrowed in the form of (a) The Company, one or if agreed by all of more increases to the Lenders under Revolving Committed Amount (the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional BorrowerRevolving Loans”) mayand/or (b) a term loan facility (the “Additional Term Loan”; together with any Additional Revolving Loans, by written notice the “Additional Loans”), in an aggregate amount at any one time of up to $100,000,000. The following terms and conditions shall apply: (i) the aggregate amount of all Additional Loans shall not at any one time exceed $100,000,000, (ii) the terms and conditions of any Additional Term Loans shall be reasonably satisfactory to the Administrative Agent and the Additional Loan Lenders (as such term is defined below), (iii) the loans made under any Additional Loan facilities shall constitute Credit Party Obligations, (iv) any Additional Revolving Loans shall not have a shorter maturity or higher Applicable Margin than the existing Revolving Loans and shall have other terms and conditions reasonably acceptable to the Administrative Agent and the Additional Loan Lenders, (v) any Additional Term Loan shall not have a shorter maturity or higher Applicable Margin than the Term Loan, and shall have other terms and conditions reasonably acceptable to the Administrative Agent, request (vi) any Additional Loans shall be entitled to the establishment same voting rights as the existing Loans and shall be entitled to receive proceeds of one prepayments on the same basis as comparable Loans, (vii) any Additional Loans shall be obtained from existing Lenders or more new tranches of term facilities denominated from other banks, financial institutions or investment funds, in Dollars each case in accordance with the terms set forth below (eachsuch Persons being referred to herein as the “Additional Loan Lenders”), (viii) each Additional Loan shall be in a “New Term Loan Facility”) and/or increase the minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof, (ix) the Initial Term proceeds of any Additional Loans will be used to finance capital expenditures and working capital and other general corporate purposes, including Permitted Acquisitions, (x) the Borrower shall execute such promissory notes as are necessary and requested by the Additional Loan Lenders to reflect the Additional Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments (xi) the conditions to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term LoansExtensions of Credit in Section 4.1(b), “Incremental Term Loans”(c), (o) and/or request and (h) and Section 4.2 shall have been satisfied and (xii) the establishment of one or more new tranches of Revolving Credit Commitments (eachAdministrative Agent shall have received from the Borrower updated financial projections and an officer’s certificate, a “New Revolving Credit Facility”) and/or request an increase in each case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, after giving effect to any such Additional Loan, the Borrower will be in compliance with the financial covenants set forth in Section 6.6. Participation in any Tranche Additional Loans shall be offered first to each of Revolving Credit Commitments (together with any New Revolving Credit Facilitythe existing Lenders on a pro rata basis, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company but none of such Lenders shall have any obligation to approach provide all or any portion of any such Additional Loans. If the amount of any Additional Loans requested by the Borrower shall exceed the commitments which the existing Lenders are willing to provide any Incremental Facilitywith respect to such Additional Loans, then the Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent to join this Credit Agreement as Lenders hereunder for the portion of such Additional Loans not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request. In the case of Additional Revolving Loans, the existing Lenders shall make such assignments (which assignments shall not be subject to the requirements set forth in an aggregate amount not in excess Section 9.6(c)) of the sum ofoutstanding Revolving Loans and Participation Interests to the Additional Loan Lenders providing any Additional Revolving Loans so that, after giving effect to such assignments, each Lender holding a Revolving Commitment (including such Additional Loan Lenders) will hold Revolving Loans and Participation Interests equal to its Commitment Percentage of all outstanding Revolving Loans and LOC Obligations. Notwithstanding any provision of this Credit Agreement to the contrary, the Administrative Agent is authorized (with the consent of the Borrower and the Additional Loan Lenders), to enter into, on behalf of all Lenders, any amendment, modification or supplement to this Credit Agreement or any other Credit Document as may be necessary to incorporate the terms of any Additional Loans.
Appears in 1 contract
Sources: Credit Agreement (Pantry Inc)
Incremental Facilities. (ai) The CompanyAfter the Restatement Effective Date and before the Term Loan Maturity Date (with respect to Term Loans) and the Revolving Termination Date (with respect to Revolving Loans), or if agreed by all of as applicable, the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, may request (x) the establishment of one or more new additional tranches of term facilities denominated loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) increases in Dollars the Revolving Commitments (the “Incremental Revolving Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Facilities Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Facilities Amount”) of the Incremental Loan Commitments shall not exceed $400,000,000; provided further, that the Maximum Incremental Facilities Amount shall be increased by an additional $200,000,000 upon consummation of the DTA Acquisition Step 1 in accordance with the terms and conditions set forth herein, and (ii) after the Restatement Effective Date and before the Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental 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. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment and (ii) any entity providing all or a portion of the Incremental Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed).
(b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that (i) except for any Incremental Loan Commitment in connection with the DTA Acquisition, no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments, (ii) except for any Incremental Loan Commitment in connection with the DTA Acquisition, the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof), (iii) the weighted average life to maturity of any Incremental Term Loan shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans, (iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, (v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of their Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date and (y) the upfront fees paid to all of the Lenders in respect of their Revolving Commitments, (vi) if the final maturity date of such Incremental Term Loans is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loan (giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 5▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (▇▇▇) if the final maturity date of such Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and (viii) the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “New Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Term Loan FacilityLender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Term Loan Lender or Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement.
(c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Commitments shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and/or increase and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving 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 Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Initial Term Loans, Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to the Revolving Loans and the Revolving Commitments.
(d) On any Increased Amount Date on which any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments Loan Commitments are effected, subject to be added to such Loans the satisfaction of the foregoing terms and conditions, (together i) each Person with any New an Incremental Term Loan FacilityCommitment (each, an “Incremental Term Facility” andLoan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, any and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments Synthetic L/C Commitment (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Synthetic L/C Lender”) shall make a deposit in a credit linked deposit account in respect of such Incremental Term Facility, Synthetic L/C Facility (an “Incremental Facilities” andSynthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the loans thereunderIncremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, “Incremental without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. Notwithstanding anything in this Agreement to the contrary, (i) the references to the Term Loans in this Section 2.23 shall be deemed to include the Replacement Term Loans and (ii) the references to the Revolving Credit Loans” and, together with any Incremental Term Commitments or the Revolving Loans in this Section 2.23 shall be deemed to include the Extended Revolving Commitments or the Extended Revolving Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofas applicable.
Appears in 1 contract
Incremental Facilities. (a) The CompanySo long as no Event of Default under Subsection 9.1(a) or (f) exists or would arise therefrom, the Borrower shall have the right (on behalf of itself, or if agreed by all in the case of Incremental Loans the Lenders under the applicable Incremental Facilityproceeds of which will be subject to an escrow or other similar arrangement, a Guarantor an Escrow Subsidiary (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental FacilityEscrow Subsidiary, an “Additional Escrow Borrower”)), at any time and from time to time after the Closing Date, (i) may, by written notice to the Administrative Agent, request the establishment of new term loan commitments under one or more new tranches of term loan credit facilities denominated to be included in Dollars this Agreement (each, a the “New Incremental Term Loan FacilityCommitments”), (ii) and/or to increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Existing Term Loans by requesting new term loan commitments to be added to such an Existing Tranche of Term Loans (together with any New the “Supplemental Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term LoansCommitments”), “Incremental Term Loans”(iii) and/or to request the establishment of new commitments under one or more new tranches of Revolving Credit Commitments revolving facilities to be included in this Agreement (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an the “Incremental Revolving Commitments”), and (iv) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit FacilityCommitments” and, together with any the Incremental Term FacilityLoan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Facilities” andCommitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with Subsection 8.1(b)(i) and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Chief Financial Officer or a Responsible Officer of the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test). Any loans thereundermade in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion); provided that such amount may be less than $10,000,000 if such amount represents the then remaining aggregate principal amount available to be Incurred in compliance with Subsection 8.1(b)(i).
(b) Each request from the Borrower pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution, an “Additional Incremental Revolving Credit Loans” andLender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Term LoansCommitments, the “Incremental LoansLenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment). The Borrower may agree, in its sole discretion, to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Incremental Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate.
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit I-1 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit I-2 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan Documents (including amendments to Subsection 2.2(b) to increase the amortization payments or interest rate margins thereunder or add customary call protection provisions with respect thereto to allow for the applicable Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Subsection 2.8(c).
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, an Escrow Borrower (if applicable) and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Subsection 2.8; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors (it being understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Subsidiary Guarantor), and (other than with respect to proceeds of such Incremental Commitments which are subject to an escrow or other similar arrangement and any related deposit of cash, Cash Equivalents and/or Temporary Cash Investments to cover interest and premium in respect of such Incremental Commitments) will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term Loan Facility Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the ABL/Term Loan Intercreditor Agreement, a Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, or (at the Borrower’s option) will be unsecured), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations and (C) no existing Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Lien on any asset (other than proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of cash, Cash Equivalents and/or Temporary Cash Investments to cover interest and premium in respect of such Incremental Loans) of any Loan Party that does not also secure the Term Loan Facility Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment from the Net Available Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event or from Excess Cash Flow, to the extent the Net Available Cash Proceeds of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans pursuant to Subsection 4.4(e), on more than a ratable basis with the Initial Term Loans (after giving effect to any amendment in accordance with Subsection 11.1(d)(vi)); (ii) no Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders be required to provide any such Incremental FacilityCommitment unless it so agrees; (iii) [reserved]; (iv) the maturity date and the weighted average life to maturity of any Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity (1) for customary bridge financings, which, subject to customary conditions (as determined by the Borrower in good faith, which determination shall be conclusive), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable or, (2) pursuant to an escrow or similar arrangement with respect to the proceeds of such Incremental Term Loans or (3) of Indebtedness under any Incremental Term Loan Commitments in an aggregate principal amount at any time outstanding (together with the aggregate principal amount of any Additional Obligations, any Refinancing Indebtedness and Indebtedness under any Specified Refinancing Term Loan Facility and any applicable Extended Tranche, in each case outstanding under the Earlier Maturity Date Basket) not in excess of the sum ofEarlier Maturity Date Basket); (v) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Lenders; provided that in the event that the applicable interest rate margins for any syndicated floating rate Incremental Term Loans denominated in Dollars, the principal amount of which exceeds the MFN Threshold Amount, that are secured on a pari passu basis by the Collateral securing the First Lien Obligations, with a Stated Maturity that is earlier than 12 months following the InitialTranche B Term Loan Maturity Date, Incurred by the Borrower pursuant to the Ratio Incremental Facility, made on or prior to the 12-month anniversary of the Closing DateFirst Amendment Effective Date and not Incurred to finance or refinance, or otherwise in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary, or any other Investment, are higher than the applicable interest rate margin for the InitialTranche B Term Loans by more than 75 basis points, then the effective interest rate margin for the applicable InitialTranche B Term Loans at the time such Incremental Commitments become effective (the “Existing Interest Rate”) shall be increased to the extent necessary so that the Existing Interest Rate is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 75 basis points (the “Adjusted Interest Rate”, and the number of basis points by which the Existing Interest Rate is increased, the “Increased Amount”); provided, further that, in determining the applicable interest rate margins for the applicable InitialTranche B Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such InitialTranche B Term Loans or any Incremental Term Loan, as applicable, in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest rate based on an assumed four-year life to maturity) (provided that, if such InitialTranche B Term Loans are issued in a manner such that all such InitialTranche B Term Loans were not issued with a uniform amount of OID or upfront fees within the applicable Tranche of InitialTranche B Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of InitialTranche B Term Loans shall be determined on a weighted average basis); (B) any arrangement or structuring fees payable in connection with the Incremental Term Loans or any other fees payable in connection with the Incremental Term Loans that are not(other than, in the case of syndicated Incremental Term Loans, and only if such fees are shared with all Additional Incremental Lenders providing such syndicated Incremental Term Loans) shall, in each case, be excluded; (C) any amendments to the Applicable Margin or effective interest rate margin on the applicable InitialTranche B Term Loans that became effective subsequent to the ClosingFirst Amendment Effective Date but prior to the effective time of such Incremental Term Loans shall also be included in such calculations, (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the applicable InitialTranche B Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for such InitialTranche B Term Loans shall be required, to the extent an increase in the interest rate floor for such InitialTranche B Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to such InitialTranche B Term Loans shall be increased by such amount to the extent necessary to adjust the applicable Existing Interest Rate to be equal to the applicable Adjusted Interest Rate, (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the applicable Tranche of InitialTranche B Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such InitialTranche B Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the InitialTranche B Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the InitialTranche B Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Term Loans for purposes of determining whether an increase in the Existing Interest Rate shall be required and (F) if the applicable Tranche of InitialTranche B Term Loans includeincludes a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (vi) such Incremental
Appears in 1 contract
Sources: Credit Agreement (Core & Main, Inc.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) Parent Borrower may, by written notice to the Administrative AgentAgent at any time, on one or more occasions, request the establishment of to (i) add one or more new tranches of term facilities denominated in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Specified Refinancing Term Loans by requesting new term loan loans commitments to be added to such Loans (together with any New Term Loan Facilitysuch new tranche or increase, an “Incremental Term Facility” and, and any Loans loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request the establishment of (ii) add one or more new tranches of Revolving Credit Commitments incremental revolving facilities and/or increase the principal amount of any such tranche of incremental revolving facilities (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, ”; and the loans CREDIT AGREEMENT, Page 88 thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, ) in an aggregate amount not in excess to exceed the Incremental Amount. Such notice shall set forth (i) the amount of the sum ofIncremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Term Loans denominated in dollars, in minimum increments of $15,000,000, and with respect to Incremental Term Loans denominated in an Alternative Currency, in minimum increments of the Dollar Equivalent of $7,500,000, (y) with respect to Incremental Revolving Commitments denominated in dollars, in minimum increments of $10,000,000, and with respect to Incremental Revolving Commitments denominated in an Alternative Currency, in minimum increments of the Dollar Equivalent of $5,000,000 or (z) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender and/or Additional Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be made thereunder; provided that, (i) subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (i)), the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (ii)), the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the remaining weighted average life to maturity of the then-existing Term A Loans (it being agreed, for the avoidance of doubt, that when calculating the weighted average life to maturity of any Indebtedness being amended, restated, amended and restated, supplemented, extended, renewed, replaced, refinanced or otherwise modified, the effects of any amortization or prepayments made on such Indebtedness vis-ά-vis the amortization schedule prior to the date of the applicable amended, restatement, amendment and restatement, supplement, extension, renewal, replacement, refinancing or other modification shall be disregarded), and (y) that is a “term loan B” shall be no shorter than the remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan (it CREDIT AGREEMENT, Page 89 being agreed, for the avoidance of doubt, that when calculating the weighted average life to maturity of any Indebtedness being amended, restated, amended and restated, supplemented, extended, renewed, replaced, refinanced or otherwise modified, the effects of any amortization or prepayments made on such Indebtedness vis-ά-vis the amortization schedule prior to the date of the applicable amended, restatement, amendment and restatement, supplement, extension, renewal, replacement, refinancing or other modification shall be disregarded), (iii) such Incremental Facilities may be pari passu or subordinated in right of payment with respect to the Loans outstanding (or made on) the Vion Acquisition ClosingFifth Amendment Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a customary intercreditor agreement with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured, (iv) any prepayment (other than scheduled amortization payments and voluntary prepayments) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Term Loans that require ratable prepayment shall be made on a pro rata basis with such then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), subject to the right of the Borrowers to direct the application of voluntary prepayments and except that the Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (v)), the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to Revolving Commitments, (vi) if the Effective Yield in respect of any Incremental Term Loans that are “term B loans” that rank pari passu in right of payment and with respect to security with any Term B Loans outstanding on the FourthFifth Amendment Date exceeds the Effective Yield for such Term B Loans by more than 0.50%, then the Applicable Rate for such relevant Term B Loans shall be increased to the extent necessary so that the Effective Yield for such Term B Loans is equal to the Effective Yield for such Incremental Term Loans that are “term B loans” minus 0.50% and (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three revolving facilities (including any revolving facility constituting Specified Refinancing Debt), shall be outstanding hereunder at any one time and (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities. All terms with respect to any Incremental Facility which are materially more restrictive (taken as a whole) than those with respect to the Loans under the existing applicable Class of Credit Facility shall be (x) permitted by clauses (i) through (vii) of the preceding sentence, (y) applicable only after the Latest Maturity Date of the relevant Credit Facility outstanding on the FourthFifth Amendment Date (which may be achieved by an amendment solely among the Parent Borrower and the Administrative Agent (and the Required Lenders hereby authorize the Administrative Agent to enter into such amendment)), or (z) otherwise be reasonably satisfactory to the Administrative Agent; provided that documentation governing any Incremental Facility may include such materially more restrictive terms so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such term for the benefit of each Credit Facility of the same Class (which may be achieved by an amendment solely among the Parent Borrower and the Administrative Agent (and the Required Lenders hereby authorize the Administrative Agent to enter into such amendment)); provided that if any covenant is added for the benefit of the Term B Loans pursuant to the immediately preceding proviso, such covenant shall be added to each Class to the extent such Class does not already have such covenant at least as restrictive. The Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such covenant for the benefit of each Credit Facility of the same Class. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrowers to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) on the date on which such Loan is made or of such effectiveness, (A) the conditions set forth in Section 4.04 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.04 shall be deemed to refer to the Increased Amount Date) and (B) the Parent Borrower is in compliance with the Financial Covenants on a Pro Forma Basis and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Parent Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Effective Date under Section 4.01; provided that if the proceeds of an Incremental Facility are to be used to finance a Limited Condition Acquisition, any such conditions will be subject to Section 1.10(c) hereof.
Appears in 1 contract
Incremental Facilities. (a) The CompanyParent Borrower shall have the right, or if agreed by all of but not the Lenders under obligation, after the applicable Incremental FacilityClosing Date, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written upon notice to the Administrative AgentAgent (an “Incremental Borrowing Notice”), request the establishment of to incur one or more new tranches of additional term loan facilities denominated in Dollars (each, a an “New Incremental Term Loan Facility,” and together with the Initial Term Loan Facility, the “Term Loan Facilities”; the loans under each Incremental Term Loan Facility, “Incremental Term Loans”), additional revolving facilities (each, an “Incremental Revolving Facility,” the loans under each Incremental Revolving Facility, “Incremental Revolving Loans”), or increases in the aggregate commitments under the Initial Revolving Facility (which may, with respect to any Incremental Revolving Facility or any increase to the Initial Revolving Facility, at the election of the Parent Borrower, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed), the Swing Line Commitment) (each, an “Incremental Initial Revolving Facility,” the loans thereunder, the “Incremental Initial Revolving Loans”; each Incremental Initial Revolving Facility, together with each Incremental Revolving Facility and each Incremental Term Loan Facility, collectively, the “Incremental Facilities”), in each case sharing in the Collateral (as defined below) on a pari passu or junior basis, in an aggregate amount of up to (w) $275.0 million minus the aggregate amount of Indebtedness incurred in reliance on clause (a)(x)(1) of the definition of “Permitted Incremental Indebtedness” plus (x) all voluntary prepayments (resulting in a permanent reduction in the Loans) and commitment reductions of the Credit Facilities prior to such time, plus (y) unlimited additional amounts so long as after giving effect to the incurrence of the Loans in respect of such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments (assuming that the full amount thereof is drawn and that any such Indebtedness incurred pursuant to such Incremental Facility is secured on a first-lien basis, whether or not so secured) (I) the First Lien Leverage Ratio (calculated on a Pro Forma Basis and provided that (A) all Permitted Incremental Indebtedness incurred under Section 7.03(w) shall also be included in such calculation for this purpose, whether or not it would otherwise be included and (B) the proceeds of the Incremental Facility being incurred shall not be netted against indebtedness for purposes of the calculation relating to such incurrence) shall not be greater than 4.50 to 1.00 or (II) if such Indebtedness constitutes Indebtedness incurred in connection with a Permitted Acquisition or Investment, such Indebtedness is permitted to be incurred under Section 7.03(g)(ii) and is permitted to be, and is, secured on a pari pasu basis pursuant to Section 7.02(d)(ii); provided that (a) no commitment of any Lender may be increased without the consent of such Lender, (b) no Event of Default exists after immediately giving effect thereto (provided, however, that if the proceeds of such Incremental Facilities are used to finance a Permitted Acquisition or other similar Investment permitted by this Agreement (and costs reasonably related thereto), it shall only be required that no Specified Event of Default shall exist immediately after giving effect to such incurrence), (c) any Incremental Facility that is an increase in the aggregate amount of the Initial Revolving Commitment shall be on the same terms and pursuant to the same documentation as the Initial Revolving Commitment, (d) the yield applicable to any Incremental Initial Revolving Facility shall be equal to the corresponding yield on the Initial Revolving Facility (calculated for such Incremental Initial Revolving Facility and Initial Revolving Facility inclusive of any original issue discount and/or upfront fee percentage paid to all Lenders, but exclusive of any arrangement, underwriting or similar fees); provided that Parent Borrower may increase the principal pricing of the Initial Revolving Facility, without the consent of the Administrative Agent or any Lender, such that the foregoing is true, including increasing the Applicable Margin, the Commitment Fee, adding or increasing an existing “LIBOR Floor” (if applicable), and paying additional original issue discount and/or upfront fees, (e) in the case of any Incremental Revolving Facility, (i) such Incremental Revolving Facility shall have a final maturity no earlier than the Initial Revolving Facility Termination Date and (ii) such Incremental Revolving Facility shall provide that (A) the borrowing and repayment (except for (1) payments of interest and fees at different rates on the Incremental Revolving Facility (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Facility and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (C) below)) of Loans with respect to Incremental Revolving Credit Commitments after the effectiveness of such Incremental Revolving Facility shall be made on a pro rata basis with all other Revolving Commitments on the date of effectiveness of such Incremental Revolving Facility, (B) subject to the provisions of Section 2.04(e) and Section 2.05(h) to the extent dealing with Swing Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Facilities with a longer maturity date, all Swing Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Commitments on the effective date of such Incremental Revolving Facility (and except as provided in Section 2.04(e) and Section 2.05(h), without giving effect to changes thereto on an earlier maturity date with respect to Swing Loans and Letters of Credit theretofore incurred or issued), (C) the permanent repayment of Revolving Loans with respect to, and termination of, commitments in respect of Incremental Revolving Facilities after the associated effective date of such Incremental Revolving Facility shall be made on a pro rata basis with all other Revolving Commitments on the effective date of such Incremental Revolving Facility, except that the Borrowers 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, (D) Incremental Revolving Facilities may include provisions relating to swing line 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 swing line lender and letter of credit issuer, as applicable, which shall be determined by the Parent Borrower, the lenders of such commitments and the applicable letter of credit issuers and swing line lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Revolving Credit Assumption Agreement) to the terms relating to Swing Loans and Letters of Credit with respect to the Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (E) assignments and participations of Incremental Revolving Credit Commitments and Loans shall be governed by the same assignment and participation provision, (f) the yield applicable to any Incremental Term Loan Facility or Incremental Revolving Facility, in each case which is incurred prior to the date that is the 18 month anniversary of the Closing Date, shall not be more than 0.50% higher than the yield on the corresponding Initial Facility (calculated for both such Incremental Facility and the corresponding Initial Facility inclusive of any “LIBOR Floor” (if applicable), original issue discount and/or upfront fees paid to all Lenders under such Initial Facility, but exclusive of any arrangement, underwriting or similar fee paid), unless the yield with respect to the applicable Initial Facility is increased by an amount equal to or greater than the difference between the yield with respect to the Incremental Facility and the corresponding yield on such Initial Facility (for purposes of determining the difference in “yield” as to such Incremental Facility and the corresponding Initial Facility, yield shall be calculated by adding the difference with respect to such Incremental Facility and such corresponding Initial Facility of each of the following: (i) Applicable Revolving Loan Margin or Applicable Term Loan Margin, as applicable, (ii) “LIBOR floor”, which shall be equated to yield by taking the difference of (A) the “LIBOR floor” of such facility and (B) the 3-month Adjusted Eurodollar Rate as of a date ten (10) Business Days prior to the closing of such Incremental Facility and (iii) original issue discount and/or upfront fees, which shall be equated to yield by dividing such original issue discount and/or upfront fee percentage (as of the date such facility was funded, in each case), by four (4)) (provided, that for purposes of calculating the yield related to the original issue discount and/or upfront fee percentage of the Incremental Facilities, if the Weighted Average Life to Maturity of the Incremental Facility is shorter than 4 years, the actual Weighted Average Life to Maturity), (g) the maturity of any Incremental Term Loan Facility shall not be earlier than the Latest Maturity Date of the Initial Term Loans, (h) the Weighted Average Life to Maturity of any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to Loan Facility shall not be added to such Loans (together with any New shorter than that of the Initial Term Loan Facility, an “(i) the Incremental Term Loan Facility shall provide that such facility may be prepaid with the proceeds of mandatory prepayment events on a pro rata basis (but not greater than pro rata basis) with other then outstanding Initial Term Loans, (j) the covenants, events of default and guarantees of such Incremental Term Loan Facility or Incremental Revolving Facility” and, if not consistent with the terms of the corresponding Initial Facility (A) shall be as mutually agreed upon between the Parent Borrower and lenders providing such Incremental Facility and (B) shall not be more restrictive to the Parent Borrower, when taken as a whole, than the terms of the corresponding Initial Facility unless (1) Lenders under the corresponding Initial Facility also receive the benefit of such more restrictive terms (without any consent being required) or (2) any such provisions apply after the Latest Maturity Date of the corresponding Initial Facility and (k) (x) Incremental Term Loan Facilities shall be requested in minimum amounts of $15,000,000 or a higher multiple of $1,000,000 and (y) Incremental Revolving Facilities shall be requested in minimum amounts of $5,000,000 or a higher multiple of $1,000,000; provided that a certificate of an Authorized Officer delivered to the Administrative Agent at least five (5) Business Days prior to the incurrence of such Incremental Facility (or such shorter period of time as the Administrative Agent shall reasonably agree) stating that the Parent Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement in clause (j) shall constitute sufficient evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Parent Borrower within three (3) Business Days of receipt of such certificate that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees). The proceeds of each Incremental Facility may be used for any purpose not prohibited by this Agreement. The commitments in respect of any Incremental Facilities may be denominated in Canadian Dollars, U.S. Dollars, Euro, Sterling and/or other currencies as agreed among Parent Borrower, the Administrative Agent and the lenders providing such Incremental Facilities. Each Incremental Borrowing Notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Credit Commitments being requested, (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than five (5) Business Days nor more than sixty (60) days after the date of Incremental Borrowing Notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments, if any, are to be Term Commitments or commitments to make term loans with terms different from the Term Loans made pursuant (“Other Term Loans”).
(b) Any Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The applicable Borrower, each Incremental Term Lender and the Administrative Agent shall execute and deliver an Incremental Term Facility (including Loan Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. The Incremental Term Loan Assumption Agreement may, without the consent of any New other Lenders, effect such amendments to this Agreement and the other Loan Documents, and the Lenders hereby expressly authorize the Administrative Agent to enter into any such amendments, that are consistent with and as may be necessary, in the reasonable opinion of the Administrative Agent and the Parent Borrower, to effect the provisions of this Section 2.18. The Borrowers, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent would be required under Section 11.12(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. Each Incremental Term Loans), “Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Term Loans”) and/or request , Incremental Revolving Loans or Incremental Initial Revolving Loans, as applicable, to be made thereunder, consistent with the establishment provisions set forth in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of one or more new tranches of each Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, or otherwise to effect the provisions of this Section 2.18, notwithstanding any requirements of Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrowers and furnished to the other parties hereto and the Lenders hereby expressly authorize the Administrative Agent to enter into any such amendments.
(c) Upon each increase in the Revolving Commitments under the Initial Revolving Facility pursuant to this Section 2.18, each Lender with a Revolving 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 Initial Revolving Facility (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Initial Revolving Credit Facility” andFacility Lender”) in respect of such increase, together with any and each such Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Initial Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Facility Lender will automatically and without further act be deemed to have an obligation to make any Incremental Facilityassumed, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facilitya portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, in an aggregate amount not in excess of the sum ofafter giving effec
Appears in 1 contract
Sources: Credit Agreement (Patheon Holdings Cooperatief U.A.)
Incremental Facilities. (a) The CompanyBorrowers may, from time to time after the Closing Date, upon notice by the Borrowers to the Applicable Agent and the Person appointed by the Borrowers to arrange an incremental Facility (such Person (who (i) may be the Applicable Agent, if it so agrees, or if agreed (ii) any other Person appointed by all the Borrowers after consultation with the Applicable Agent; provided that such Person may not be an Affiliate of any Borrower), the Lenders “Incremental Arranger”) specifying the proposed amount, proposed Borrowers (which shall be a Borrower hereunder) and currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the applicable Incremental Facilitysame terms as, and become part of, the Revolving Tranche proposed to be increased) (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 be increased hereunder (except as otherwise provided in clause (d) below with respect to amortization)) (each, a Guarantor “Term Commitment Increase”), (any such Guarantor, for so long as loans or commitments remain outstanding under iii) the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment addition of one or more new tranches revolving credit facilities to the Facilities (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 (iv) the addition of one or more new term loan facilities denominated in Dollars (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) by an amount not to exceed the sum of (x) the greater of (1) the Dollar Amount of $295,000,000 and (2) Consolidated EBITDA of the Borrower Parties for the four fiscal quarter period most recently then ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, calculated on a Pro Forma Basis for such period (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) and/or increase so long as the principal Maximum First Lien Leverage Requirement is satisfied and (z) an amount equal to all voluntary prepayments of the Initial pari passu Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to Section 2.05(a) and repurchases of pari passu Term Loans made pursuant to the terms hereof and voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) to the extent accompanied by a corresponding, permanent reduction in the Revolving Credit Commitments pursuant to Section 2.06(a), in each case, to the extent not funded with the proceeds of long term Indebtedness (other than to the extent funded with the identifiable unused proceeds of a borrowing made pursuant to the Cash-Capped Incremental Facility within three months from the date of incurrence thereof) (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) $20,000,000 (or equivalent Dollar 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 this Section 2.14 and 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, if any, prior to utilization of the Cash-Capped Incremental Facility and the Ratio-Based Incremental Facility, and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent permitted by the pro forma calculation of the Consolidated First Lien Net Leverage Ratio) 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 permitted by the pro forma calculation of the Consolidated First Lien Net Leverage Ratio), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Ratio-Based Incremental Facility or the Cash-Capped Incremental Facility), then calculating the incurrence under the Ratio-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 and (C) the Borrower may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, 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 by the Dollar Amount of such redesignated Indebtedness). The Borrowers may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as 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 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 or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Applicable 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 Parent Borrower must provide to the Applicable Agent reasonable prior written notice thereof and the documentation providing for such New Loan Commitments.
(c) 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 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 pursuant to an Incremental Facility Agreement. 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 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, (including i) no Event of Default (subject to 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 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 (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 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, and (D) in the case of any New Term LoansFacility, 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 the remaining Weighted Average Life to Maturity 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, or otherwise as shall be reasonably satisfactory to the Incremental Arranger, any such New Term Facility or New Revolving Facility shall have the same terms as the Term Facility or Revolving Credit Facility, respectively; provided, that (x) to the extent such terms are more favorable to the Lenders than comparable terms existing in the Loan Documents, such terms may, in consultation with the Applicable Agent, be incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrowers, any increase in the Applicable Rate or Benchmark PBOC Rate, as applicable, relating to any existing Term Facility to bring such Applicable Rate or Benchmark PBOC Rate, as applicable, 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 Administrative Agent, the Incremental Arranger and the Borrowers 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 Applicable Agent in such jurisdiction 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). Notwithstanding the foregoing, “Incremental Term Loans”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) and/or request On the establishment 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 one or more new tranches of the increase to the Revolving Credit Commitments (each, a “New 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 Facility”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 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) and/or request an increase in if, on the date of such increase, there are any Tranche 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 Commitments Loans made hereunder (together with any New reflecting such increase in Revolving Credit FacilityCommitments), an “Incremental which prepayment shall be accompanied by accrued interest on the Revolving Credit Facility” andLoans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Applicable Agent and the Lenders hereby agree that the minimum borrowing, together with any Incremental 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 Facility, “Incremental Facilities” and, Loans made under the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental 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.
(f) (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with the other Facilities, not be Guaranteed by any Person that is not a Borrower or Guarantor under each of the other Facilities, and be unsecured, secured either on a first lien “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will equal and ratable” basis with the Company have any obligation to approach any existing Lenders to provide any Incremental Facilityother Facilities or on a “junior” basis with the other Facilities, in an aggregate amount not each case over the same (or less) Collateral that secures the Facilities (and in excess of each case, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the sum ofApplicable Agent) but if unsecured or secured on a “junior” basis to the other Facilities, such New Revolving Facility or New Term Facility shall be documented in a separate agreement than this Agreement, (ii) the New Term Facil
Appears in 1 contract
Sources: Credit Agreement (Atotech LTD)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) Parent Borrower may, by written notice to the Administrative AgentAgent at any time, on one or more occasions, request the establishment of to (i) add one or more new tranches Classes of term facilities denominated in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial any Class of Term Loans, any Incremental Term Loans or any Extended Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facilitysuch new Class or increase, an “Incremental Term Facility” and, and any Loans loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request (ii) increase the establishment principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new tranches Classes of Revolving Credit Commitments incremental revolving facilities (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilitysuch new Class or increase, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, ”; and the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, ) in an aggregate amount not to exceed the Incremental Amount. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess of thereof or (y) equal to the sum ofremaining Incremental Amount), (ii) the applicable Borrower and (iii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
Appears in 1 contract
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor Any Borrower (including any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, or any other Guarantor may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more new (x) additional tranches of term facilities denominated loans or increases in Dollars Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), (y) 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 LoanCredit 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 $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), which may be incurred in Dollars, Euros or Sterling. In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrowers 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 and, subject to reclassification as set forth in Section 10.1, classify such Indebtedness as being incurred under clause (i) or clause (ii) of the definition of “Maximum Incremental Facilities Amount”. The Borrowers may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments; 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. Subject to Section 1.12 in each case, such New Loan Commitments shall be subject to (i) no Event of Default under Section 11.1 or Section 11.5 (with respect to the Borrowers) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers and Administrative Agent, 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 Borrowers 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 shall, at the election of the Borrowers 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. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Revolving Credit Loans for all purposes of this Agreement. Notwithstanding anything else to the contrary in this Section 2.14 or otherwise in this Agreement, any Incremental Loans may be incurred by any Borrower(s) and/or any other Credit Party at the option of the Borrowers.
(b) Incremental Revolving Credit Commitments shall be subject to the satisfaction of the 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 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 Incremental Revolving Credit Commitments, (i) each 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, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender.
(c) New Term Loan Commitments of any Series shall be subject to the satisfaction of the following terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan FacilityLender”) and/or increase of any Series shall make a Loan to the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans Borrowers (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit FacilityTerm Loan” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term 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 and documentation set forth in the Joinder Agreement as determined by the Borrowers; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Tranche B-5-6 Term Loan Maturity Date; (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the remaining weighted average life to maturity of the then existing Tranche B-5-6 Term Loans (provided that the foregoing clauses (i) and (ii) shall not apply to (A) up to the greater of (x) $1,100,000,000 and (y) 100% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) in IncrementalNew Term FacilitiesLoans as selected by the Borrowers, (B) customary bridge loans (including 364-day bridge loans); provided, that either (x) the terms of such bridge loans provide for automatic extension of the maturity date thereof to a date that is not earlier than the Tranche B-5-6 Term Loan Maturity Date or (y) any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of clauses (i) and (ii), (C) customary term A loans and (D) Indebtedness issued subject to customary escrow arrangements that have redemption requirements related to such escrow release (so long as subject to such escrow)), (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrowers and the Lenders thereunder; provided, that except with respect to (A) up to the greater of (x) $1,100,000,000 and (y) 100% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) of New Term Loans (as selected by the Borrowers), (B) customary term A loans, (C) customary bridge loans (including 364-day bridge loans) (provided that any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (iii)) and (D) New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment, with respect to any such non-excepted New Term Loans in the form of a broadly syndicated U.S. dollar denominated term “B” loan that is secured on a pari passu basis with the Tranche B-5 Term Loans incurred pursuant to clause (i)(a) of the definition of “Maximum Incremental Facilities Amount” that matures earlier than one year after the Tranche B-5 Term Loan Maturity Date, only during the period commencing on the Amendment No. 6 Effective Date and ending on the date that is 12 months after the Amendment No. 6 Effective Date, if the Applicable Margin for SOFR Loans in respect of such New Term Loans exceeds the Applicable Margin for SOFR Loans in respect of the then existing Tranche B-5 Term Loans by more than 0.75%, the Applicable Margin for SOFR Loans in respect of the then existing Tranche B-5 Term Loans shall be adjusted so that the Applicable Margin in respect of the then existing Tranche B-5 Term Loans that are SOFR Loans is equal to the Applicable Margin for SOFR Loans in respect of such New Term Loans minus 0.75% (the “Tranche B-5 MFN Protection”), (iv) to the extent such terms and documentation are not consistent with the then existing Tranche B-5 Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall either (x) reflect market terms and conditions (as determined by the Borrowers in good faith) at the time of incurrence or issuance of New Term Loans (or the obtaining of a commitment with respect thereto) or (y) be reasonably satisfactory to the Administrative Agent (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such 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 Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the then-Latest Term Loan Maturity Date), (v) any New Term Loans may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 5.1 and (B) on a pro rata or less than pro rata basis (but not on a greater than pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such New Term Loans) in any mandatory prepayment of Term Loans required pursuant to Section 5.2, (vi) New Term Loans may not be guaranteed by any Person which is not a Credit Party and (vii) if secured, any New Term Loans may not be secured by assets that do not constitute Collateral. For the avoidance of doubt, all parties to this Agreement hereby agree that the proviso to clause (iii) of this paragraph (d) does not apply with respect to any Tranche B-2 Term Loans and/or Tranche B-4 Term Loans (all of which such “MFN” protections have expired prior to the Amendment No. 6 Effective Date) and/or any Tranche B-6 Term Loans (all of which such “MFN” protection (if any) has expired and/or not been set and/or not been renewed).
(e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that no existing Lender will have 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 2.1(e) and Section 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 obligation earlier maturity date with respect to make 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 Borrowers 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 FacilityRevolving Credit Commitments may constitute a separate Class or Classes, nor will as the Company have any obligation case may be, of Commitments from the Classes constituting the applicable Revolving Credit Commitments prior to approach any existing Lenders to provide any Incremental Facilitysuch Increased Amount Date, in an aggregate amount not in excess and
(viii) the pricing, fees, maturity and other immaterial terms of the sum ofAdditional Revolving Credit Loans may be different and shall be determined by the Borrowers and the Lenders thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the remaining weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans.
(ix) to the extent that any financial maintenance covenant is added for the benefit of any such 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 Loans remaining outstanding after the issuance or incurrence of such Indebtedness.
(f) Each Joinder Agreement may, without the consent of any other
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Sources: Credit Agreement (GoDaddy Inc.)
Incremental Facilities. (ai) The CompanyAfter the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), or if agreed by all of the Lenders under Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, may request the establishment of (x) one or more new (A) additional tranches of term facilities denominated loans or (B) increases (an “Incremental Term Loan Increase”) to an existing tranche of term loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) one or more 49 increases in Dollars the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the proposed use of proceeds thereof, the aggregate amount (the “Maximum Facilities Amount”) of the Facilities (which term, for the avoidance of doubt, shall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed $2,650,000,000; provided further, that the Maximum Facilities Amount shall be increased by an additional $200,000,000 upon consummation of the DTA Acquisition Step 1 in accordance with the terms and conditions set forth herein, and (ii) after the Restatement Effective Date and before the Final Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental 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. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment and (ii) any entity providing all or a portion of the Incremental Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed).
(b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that
(i) except for any Incremental Loan Commitment in connection with the DTA Acquisition and the Tranche A Term Loans, no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments,
(ii) except for any Incremental Loan Commitment in connection with the DTA Acquisition or the Avis Europe Acquisition, the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof),
(iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans,
(iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date,
(v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront 50 fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments,
(vi) with respect to the Term Loans (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), if the final maturity date of any Incremental Term Loans is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (except for any Incremental Tranche A Term Loans) (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
(▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued 51 or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and
(viii) the Increment Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “New Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Facility”) and/or increase Lender or the principal amount Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or Incremental Synthetic L/C Lender agrees to be bound to the terms of the Initial this Agreement as a Lender. Except for Incremental Term LoansLoans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans or any Extended made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans.
(c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving 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 Loans will be held by requesting new term loan commitments existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (y) each Incremental Revolving Commitment shall be added deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (z) each Incremental Revolving Lender shall become a Lender with respect to such the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility.
(together with d) On any New Increased Amount Date on which any Incremental Term Loan FacilityCommitments are effected, subject to the satisfaction of the foregoing terms and conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Facility” andLoan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, any and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments Synthetic L/C Commitment (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, Synthetic L/C Lender”; 52 together with any Incremental Revolving Lenders and Incremental Term FacilityLoan Lenders, the “Incremental Facilities” and, the loans thereunder, Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. Notwithstanding anything in this Agreement to the contrary, (i) the references to the Term Loans in this Section 2.23 shall be deemed to include the Replacement Term Loans and (ii) the references to the Revolving Credit Commitments or the Revolving Loans in this Section 2.23 shall be deemed to include the Extended Revolving Commitments or the Extended Revolving Loans” and, together with any as applicable. For the avoidance of doubt, (i) the Tranche A Term Loans constitute Incremental Tranche A Term Loans, (ii) the Tranche B Term Loans constitute Incremental Term Loans, “and (iii) the Tranche A Term Lenders shall be Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental FacilityTerm Loan Lenders, in an aggregate amount not in excess each case, for all purposes of this Agreement and the sum ofother Loan Documents.
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Incremental Facilities. (ai) The CompanyAfter the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), or if agreed by all of the Lenders under Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, may request the establishment of (x) one or more new (A) additional tranches of term facilities denominated loans or (B) increases (an “Incremental Term Loan Increase”) to an existing tranche of term loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) one or more increases in Dollars the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the proposed use of proceeds thereof, the aggregate amount (the “Maximum Facilities Amount”) of the Facilities (which term, for the avoidance of doubt, shall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed $3,000,000,000 and (ii) after the Restatement Effective Date and before the Final Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental 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. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment and (ii) any entity providing all or a portion of the Incremental Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed).
(b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that
(i) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments,
(ii) the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments and the use of proceeds thereof (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof) and assuming any related Specified Transaction has occurred,
(iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans,
(iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date,
(v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments,
(vi) with respect to the Term Loans (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), if the final maturity date of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
(▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and
(viii) the Incremental Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “New Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Facility”) and/or increase Lender or the principal amount Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or the Incremental Synthetic L/C Lender agrees to be bound to the terms of the Initial this Agreement as a Lender. Except for Incremental Term LoansLoans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans or any Extended made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans by requesting new term loan commitments for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. Notwithstanding the foregoing, in the case of any Incremental Loan Commitments implemented to finance a Permitted Acquisition, satisfaction of the conditions set forth in clauses (i) and (ii) may, at the option of the Borrower, be added determined solely as of the date on which the definitive agreement governing such Permitted Acquisition is executed, calculated to give pro forma effect to such acquisition as if it had occurred on such date of determination.
(c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving 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 Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (together y) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility.
(d) On any New Increased Amount Date on which any Incremental Term Loan FacilityCommitments are effected, subject to the satisfaction of the foregoing terms and conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Facility” andLoan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, any and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments Synthetic L/C Commitment (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, Synthetic L/C Lender”; together with any Incremental Revolving Lenders and Incremental Term FacilityLoan Lenders, the “Incremental Facilities” and, the loans thereunder, Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Revolving Credit Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. For the avoidance of doubt, (i) the Tranche A Term Loans constitute Incremental Tranche A Term Loans” and, together with any (ii) the Tranche B Term Loans constitute Incremental Term Loans, “and (iii) the Tranche A Term Lenders shall be Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental FacilityTerm Loan Lenders, in an aggregate amount not in excess each case, for all purposes of this Agreement and the sum ofother Loan Documents.
Appears in 1 contract
Incremental Facilities. (a) The Company, Borrowers or if agreed by all of the Lenders under the applicable Incremental Facility, a any Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment of one or more new tranches of term facilities denominated in Dollars or any other currency agreed to by the applicable Borrower, the Administrative Agent and the Lenders providing such New Term Loan Facility (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Amendment No. 1 Term Loans, the Amendment No. 2 Term Loans, any Incremental Term Loans or, any Extended Term Loans or any Extended other Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum of,
Appears in 1 contract
Sources: Credit Agreement (Acuren Corp)
Incremental Facilities. (a) The CompanyParent Borrower shall have the right, but not the obligation, after the later of (i) the date on which a Successful Syndication occurs or (ii) the Closing Date, upon notice to the Administrative Agent (an “Incremental Borrowing Notice”), to request (A) (i) one or more new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans be made pursuant to one or more additional tranches of term loans under this Agreement (collectively with any Term Loan Increase, the “Incremental Term Loan Facilities”), and/or (B) one or more increases in the aggregate commitments under the Initial Revolving Facility (each, an “Incremental Revolving Increase”) (which may, with respect to any Incremental Revolving Increase, at the election of Parent Borrower and with the consent of the LC Issuer, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender, the Swing Line Commitment) (each, an “Incremental Initial Revolving Facility,” the loans thereunder, the “Incremental Initial Revolving Loans”) (and each of the foregoing, an “Incremental Facility” and collectively, the “Incremental Facilities”), in each case, in an aggregate amount of up to (x) $50,000,000 minus the aggregate amount of Indebtedness incurred previously in reliance on this clause (x) and in reliance on clause (a)(x) of the definition of “Permitted Incremental Indebtedness”, plus (y) unlimited additional amounts so long as after giving effect to the incurrence of the Loans in respect of such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments (assuming the full amount thereof is drawn) and/or Permitted Incremental Indebtedness incurred under Section 7.03(v) and after giving effect to any Specified Transaction that may be consummated in connection therewith, the First Lien Leverage Ratio (calculated on a Pro Forma Basis and provided that (I) all Permitted Incremental Indebtedness incurred under Section 7.03(v) shall also be included in such calculation for this purpose, whether or not such Indebtedness is secured (on a pari passu basis with, or junior basis to, the Obligations) or would otherwise be included, (II) all such Loans in respect of Incremental Term Loan Commitments and/or Revolving Commitments (including any Incremental Revolving Credit Commitment) (assuming the full amount thereof is drawn) and all Permitted Refinancing Indebtedness in respect thereof (but without duplication of the amount of any Indebtedness being refinanced by such Permitted Incremental Indebtedness) shall also be included in such calculation for this purpose, whether or not such Indebtedness is secured (on a pari passu basis with, or junior basis to, the Obligations) or would otherwise be included and (III) the proceeds of the Incremental Facility being incurred shall not be netted against indebtedness for purposes of the calculation relating to such incurrence) shall not be greater than 3.50 to 1.00; provided that:
(1) no commitment of any Lender may be increased without the consent of such Lender;
(2) at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below (A) no Event of Default exists after giving effect thereto; provided, however, that if the proceeds of such Incremental Facilities are used to finance a Permitted Acquisition or other Investment permitted by this Agreement (and costs reasonably related thereto), if agreed to by the lenders providing such Incremental Facility, it shall only be required that no Specified Event of Default shall be continuing at the time of the execution of the relevant acquisition agreement and (B) all representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects (except for (I) representations and warranties which expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date and (II) representations and warranties qualified by materiality, which shall be true and correct in all respects); provided that, if otherwise agreed to by the lenders providing any Incremental Facility the proceeds of which are to be used to finance a Permitted Acquisition or other Investment (other than an intercompany Investment) permitted by this Agreement such requirements in this clause (B) shall be deemed to refer solely to, the Specified Representations and the Specified Purchase Agreement Representations, which shall be true and correct in all material respects (except for (I) representations and warranties which expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date and (II) representations and warranties qualified by materiality, which shall be true and correct in all respects);
(3) any such Incremental Facility shall (x) rank pari passu or junior in right of payment with the Initial Facilities, (y) only benefit from guarantees that also guarantee the Initial Facilities and (z) be secured on a pari passu or junior basis by the Collateral or be unsecured (in which case, the Incremental Term Loan Facility pursuant to which the such Incremental Term Loans are extended will be established as a separate facility from the then existing Initial Term Loan Facility); provided that any Incremental Facility that ranks junior in right of payment or security with the Initial Term Loan Facility shall be subject to a Customary Intercreditor Agreement or otherwise subject to intercreditor arrangements that are reasonably satisfactory to the Administrative Agent;
(4) (x) any Incremental Facility that is an Incremental Revolving Increase shall be (1) on the same terms and pursuant to the same documentation as the Initial Revolving Commitments on the date of such increase (other than the Incremental Amendment evidencing such increase) and (2) subject to the terms and conditions of Section 2.16(e) below and (y) any Incremental Facility that is a Term Loan Increase shall be on the same terms (except as set forth in Section 2.16(a)(6)) and pursuant to the same documentation as the Initial Term Loan Facility on the date of such increase (other than the Incremental Amendment evidencing such increase) and shall be added to (and form part of) each Borrowing of outstanding Term Loans under the applicable Class of Term Loans on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans of such Class;
(5) the yield applicable to any Incremental Initial Revolving Facility shall be equal to the corresponding yield on the Initial Revolving Facility (calculated for such Incremental Initial Revolving Facility and Initial Revolving Facility inclusive of any OID and/or upfront fee percentage paid to all Lenders, but exclusive of any arrangement, underwriting or similar fees); provided, that Parent Borrower may increase the pricing of the Initial Revolving Facility, without the consent of the Administrative Agent or any Lender, such that the foregoing is true, including increasing the Applicable Margin, the Commitment Fee, adding or increasing an existing Eurodollar Rate floor (if applicable), and paying additional OID and/or upfront fees;
(6) (A) in the case of a Term Loan Increase under an Incremental Term Loan Facility, shall have the Applicable Margin and amortization for the Class being increased or in the case of the Applicable Margin, higher than the Applicable Margin for the Class being increased as long as the Applicable Margin for the Class being increased shall be automatically increased as and to the extent necessary to eliminate such deficiency and (B) in the case of a new Class of Incremental Term Loans under an Incremental Term Loan Facility, the All-In Yield applicable to such Incremental Term Loans shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Initial Term Loans, plus fifty (50) basis points per annum unless the interest rate (together with, as provided in the proviso below, the Eurodollar Rate or Base Rate floor) with respect to the Initial Term Loans is increased so as to cause the then applicable All-In Yield under this Agreement on the Initial Term Loans to equal the All-In Yield then applicable to the Incremental Term Loans, minus fifty (50) points; provided if such Incremental Term Loan includes an Eurodollar Rate floor greater than 1.00% per annum or a Base Rate floor greater than 2.00% per annum, such differential between the Eurodollar Rate or Base Rate floors shall be equated to the applicable All-In Yield for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the Eurodollar Rate or Base Rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the Eurodollar Rate or Base Rate floor (but not the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such differential between the Eurodollar Rate or Base Rate floors;
(7) (A) the maturity of any Incremental Term Loan Facility shall not be earlier than the Latest Maturity Date of the Initial Term Loans and (B) on the date of the incurrence of such Incremental Term Loans, the Weighted Average Life to Maturity of any Incremental Term Loan Facility shall not be shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loan Facility;
(8) the Incremental Term Loan Facilities may 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 with other then outstanding Classes of Term Loans;
(9) the covenants and events of default of any new Class of Incremental Term Loans under an Incremental Term Loan Facility may differ from the terms of the then existing Term Loan Facility; provided that the terms that are not substantially identical to the then existing Term Loan Facility (other than pursuant to the foregoing clauses (1) through (8) above), (A) shall be as mutually agreed upon between Parent Borrower and lenders providing such Incremental Term Loan Facility and reasonably satisfactory to the Administrative Agent and (B) shall not be more restrictive to Parent Borrower or any other Borrower, when taken as a whole, than the terms of the then existing Term Loan Facility unless (1) Lenders under the existing Term Loan Facility also receive the benefit of such more restrictive terms pursuant to an amendment or amendments to the Loan Documents subject solely to the reasonable satisfaction of the Administrative Agent (without any consent of any other Secured Creditor being required) or (2) any such provisions apply after the Latest Maturity Date of the Term Loans; and
(10) Incremental Term Loan Facilities shall be requested in minimum amounts of $2,500,000 or a higher multiple of $1,000,000 and (y) Incremental Revolving Increases shall be requested in minimum amounts of $1,000,000 or a higher multiple of $1,000,000.
(b) The proceeds of each Incremental Facility may be used for working capital and other general corporate purposes, including the financing of Acquisitions or other Investments and any other purpose not prohibited by this Agreement and as agreed to by the Parent Borrower and the lenders providing such Incremental Facility.
(c) The commitments in respect of any Incremental Facilities may be denominated in U.S. Dollars and/or other currencies as agreed among Parent Borrower, the Administrative Agent and the lenders providing such Incremental Facilities. Each Incremental Borrowing Notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Credit Commitments being requested, (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than five (5) Business Days nor more than sixty (60) days after the date of Incremental Borrowing Notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments, if any, are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(d) Any Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and Additional Lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. Commitments in respect of Incremental Facilities shall become Commitments (or in the case of an Incremental Revolving Increase to be provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment), under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parent Borrower, any Additional Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent, each LC Issuer and the Swing Line Lender shall have consented to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if any such consent would be required under Section 10.12(b) for an assignment of Loans or Revolving Commitments, as applicable, to such Lender or Additional Lender. Each Incremental Amendment shall specify the terms of the Incremental Term Loans or Incremental Initial Revolving Loans, as applicable, to be made thereunder, consistent with the provisions set forth in this Section 2.16. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, the Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower, to effect the provisions of this Section 2.16, notwithstanding any requirements of Section 10.12 (including, in the case of Incremental Term Loans structured as a separate Class, the incorporation of class voting rights that prevent Lenders from agreeing to modifications that would allocate (or reallocate) payments to the Lenders in a non-pro rata manner unless such modifications are agreed to by all of the Lenders under holding the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans Loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment of one or more new tranches of term facilities denominated in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added Incremental Revolving Credit Commitments whose payment rights are being modified).
(e) Upon each Incremental Revolving Increase, each Lender with a Revolving Commitment of such Class immediately prior to such Loans increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Increase (together with any New Term Loan Facilityeach, an “Incremental Term Facility” andInitial Revolving Facility Lender”) in respect of such increase, any and each such Incremental Initial Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans made pursuant such that, after giving effect to an Incremental Term Facility 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 Swing Loans held by each Lender with a Revolving Commitment of such Class (including any New Term Loans), “each such Incremental Term Loans”Initial Revolving Facility Lender) and/or request will equal the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess percentage of the sum ofaggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such
Appears in 1 contract
Sources: Credit Agreement (PGT, Inc.)
Incremental Facilities. (a) The CompanyBorrower or any Guarantor may, or if agreed from time to time after the Closing Date, upon notice by all of the Lenders under Borrower to the applicable Person appointed by the Borrower to arrange an incremental Facility (such Person, the “Incremental FacilityArranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in any Term Loan Tranche then outstanding (each, a Guarantor “Term Commitment Increase”), (ii) 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 such Guarantoradvance made by a Lender thereunder, for so long as loans or a “New Term Loan”; and the commitments remain outstanding under thereof, the applicable Incremental Facility, an “Additional BorrowerNew Term Commitment”) may, by written notice to the Administrative Agent, request and/or (iii) the establishment of one or more new tranches of term facilities denominated in Dollars revolving credit commitments (eacheach 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 Term Commitment Increase and the New Term Commitments the “New Loan Commitments”) by (or in) a principal amount not to exceed the sum of (such sum, at any such time, the “Available Incremental Amount”): (x) the sum of (the amount available under this clause (x), the “Cash-Capped Incremental Facility”) and/or increase (I) the greater of (A) $206,000,000 and (B) 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 “Consolidated EBITDA” and Section 1.10), plus (II) the General Debt Basket Reallocated Amount, minus (III) Incremental Equivalent Cash Component Debt, plus (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage Requirement is satisfied and (z) an amount equal to all voluntary prepayments, redemptions and repurchases and payments (including prepayments at a discount to par and open market purchases, with credit given for the actual amount of the cash payment, giving credit to the principal amount of the Indebtedness repurchased and all prepayments and permanent commitment reductions (including pursuant to Section 3.08 or any substantially similar provisions in the documentation governing any applicable Indebtedness)) made by the Borrower or any of its Restricted Subsidiaries in respect of (I) Initial Term Loans, any (II) 2022 Incremental Term Loans Loans, (III) 2023 Term Loans, (IV) 2024 Term Loans, (V) New2024 Term B-2 Loans, (VI) New RevolvingTerm Loans, (VII) New Revolving Loans, (VIII) Refinanced First Lien Indebtedness (to the extent previously applied for the prepayment, redemption, repurchase, buyback or permanent commitment reduction, as applicable, of any Extended Term Loans by requesting new term loan commitments to be added to such Loans Indebtedness specified in clauses (together with any New Term Loan FacilityI), an “Incremental Term Facility” (II), (III), (IV), (V) and, (VI) and (VII) above and clause (IXX) below), (VIIIIX) the “Loans” as defined in the ABL Credit Agreement as in effect on the Closing Date, (IXX) other Indebtedness that is secured by the Collateral on a first lien pari passu or senior basis with Liens securing the Obligations and (XXI) any Loans made pursuant refinancing, replacement or extension of any of the foregoing (in each case of prepayments of a revolving facility or “Loans” as defined in the ABL Credit Agreement as in effect on the Closing Date, to an Incremental Term Facility the extent accompanied by a corresponding permanent commitment reduction), to the extent, in each case, not funded with the proceeds of long term Indebtedness (including other than any (I) revolving indebtedness and intercompany loans or (II) without duplication, any New Term Loans), New Incremental Notes or Incremental Equivalent Debt incurred in reliance on the Prepayment-Based Incremental Facility) (the “Prepayment-Based Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum of;
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Incremental Facilities. (a) The Company, Borrowers or if agreed by all of the Lenders under the applicable Incremental Facility, a any Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment of one or more new tranches of term facilities denominated in Dollars or any other currency agreed to by the applicable Borrower, the Administrative Agent and the Lenders providing such New Term Loan Facility (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial InitialAmendment No. 1 Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum of,
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Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Parent Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more new (x) additional tranches of term facilities denominated loans (including on a delayed draw basis) (the commitments thereto, the “New Term Loan Commitments”), (y) increases in Dollars 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 $10,000,000 (or the Dollar Equivalent thereof) 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). Each such notice shall specify the date on which the Parent Borrower proposes that the New Loan Commitments shall be effective (the effective date, the “Increased Amount Date”), the Borrowers (including by appointing a Guarantor (other than Holdings) as a “Borrower”, subject to customary “know your customer” and equivalent procedures and compliance with Section 1.13 (which shall be deemed to apply to New Term Loan Commitments, mutatis mutandis)) to which such New Loan Commitments will be available and the currency in which such New Loan Commitments will be borrowed. Subject to Section 1.11(c), in connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Parent 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 Borrowers may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments; 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, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) (A) subject to Section 1.11(c), no Event of Default under Section 11.1 or Section 11.5 (solely with respect to a Borrower) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable and (B) after giving effect to such New Loan Commitments, the condition in Section 7.1(b) shall be satisfied (it being understood that all references to “the date of such Credit Event” or similar language in such Section 7.1 shall be deemed to refer to the applicable date determined in accordance with Section 1.11(c)); provided, further, that the lenders providing such New Loan Commitments may modify and/or waive the requirement regarding the condition in Section 7.1(b) for all purposes hereunder, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Parent Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), (iii) the New Loan Commitments (x) shall not be incurred or guaranteed by any Subsidiary other than any Credit Party and (y) if secured, shall not be secured by any assets other than the Collateral and (iv) the Borrowers 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 shall, at the election of the Parent 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. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement.
(b) On any Increased Amount Date on which 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 Incremental Revolving Credit Commitments, (i) each 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 (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 the Letter of Credit Issuer shall have consented (not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(a) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender.
(c) On or after the 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 FacilityLender”) and/or increase of any Series shall make a Loan to the principal amount Borrowers, as specified in the applicable Notice of the Initial Term LoansBorrowing, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit FacilityTerm Loan” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, the “Incremental Loans”) in an amount up 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 and documentation set forth in the Joinder Agreement as determined by the Parent Borrower; provided that (i) subject to the Inside Maturity Exceptions, the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date (as in effect at the time of such incurrence or obtaining of a commitment with respect thereto); (ii) subject to
(1) New Term Loans incurred on or after the date that is 6 months after the ClosingAmendment No. 5 Effective Date, (2) New Term Loans scheduled to mature on or after the date that is one year after the Initial Term Loan Maturity Date, (3) any New Term Loans originally incurred in reliance upon the Shared Incremental Amount or the Prepayment and Extension Amount, (4) any New Term Loans incurred in connection with a Permitted Acquisition or other permitted Investment or to refinance Indebtedness incurred in connection with a Permitted Acquisition or other permitted Investment, (5) any New Term Loans having an aggregate principal amount not exceeding the greater of $191,000,000210,800,000 and 100% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as selected by the Parent Borrower and (6) any New Term Loans that constitutes a bridge facility (clauses (1), (2), (3), (4), (5) and (6), collectively, the “MFN Exceptions”); and (v) to the extent such terms and documentation are materially more favorable to the New Term Loan Lenders than the terms of the existing Initial Term Loans or thethen existing Amendment No. 35 Term Loans (except to the extent permitted (or, for the avoidance of doubt, not prohibited) by clause (i), (ii), (iii) or (iv) above), they shall be either (A) reasonably satisfactory to the Administrative Agent (provided that no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Initial Term Loan Maturity Date or if such covenants or other provisions are added for the benefit of the Initial Term Loans or the Amendment No. 35 Term Loans, as applicable), (B) then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment or establishment of initial terms with respect thereto)) for the applicable type of Indebtedness or (C) applicable only to periods after the Initial Term Loan Maturity Date.
(e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Amendment No. 4 Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that no existing Lender 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 pari passu 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 Amendment No. 4 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 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 Borrowers 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, and
(viii) to the extent that any New Term Loan does not form a part of the same Class with the applicable outstanding Class(es) of Term Loans for United States federal income tax purposes, such New Term Loan will have a separate CUSIP, LIN or any other security identifier, and
(f) [Reserved].
(g) (i) The Parent Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an obligation “Existing Term Loan Class”) be converted to make extend the scheduled maturity date(s) of any Incremental Facilitypayment 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, nor will “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(g). In order to establish any Extended Term Loans, the Company Parent 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 not be materially more restrictive to the Credit Parties (as determined in good faith by the Parent Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date; 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 reflected in Section 2.5 or in the Joinder 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(g) below), (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 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 or (z) no consent of any Lender or any other Person shall be required to incorporate any more restrictive term for the benefit of the applicable Existing Term Loan Class. No Lender shall have any obligation to approach agree to have any existing Lenders of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to provide any Incremental Facility, in an aggregate amount not in excess Extension Request. Any Extended Term Loans of the sum ofany Extension Series shall constitute a separate Cla
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Incremental Facilities. (a) The Company, Borrower or if agreed by all of any Subsidiary Guarantor may at any time or from time to time after the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) mayClosing Date, by written notice delivered to the Administrative Agent, Agent request the establishment of (i) one or more new tranches additional Classes of term facilities denominated loans, which may be provided in Dollars (eachDollars, a “New Term Loan Facility”) and/or increase the principal amount or in any Alternative Currency, as applicable, or additional term loans of the Initial Term Loanssame Class of any existing Class of term loans, any Incremental Term Loans or any Extended Term Loans by requesting new which may be provided in the same currency as the existing Class of term loan commitments to be added to such Loans loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), the “Incremental Term Loans”), (ii) and/or request the establishment of one or more new tranches increases in the amount of the Revolving Credit Commitments of any Class (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilityeach such increase, an “Incremental Revolving Credit Facility” 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 “Additional/Replacement Revolving Credit Commitments”, and, together with any the Incremental Term FacilityLoans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” andand the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, subject to Section 1.11, at the loans thereundertime that any such Incremental Term Loan, “Incremental Revolving Credit Loans” andCommitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), together except as set forth in the proviso to clause (b) below, no Event of Default (or, in the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition, other 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 11.1 or Section 11.5) shall 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 for purposes of mandatory prepayments, any such Additional/Replacement Revolving Credit Commitments that are designated as First Out Obligations shall be treated no more favorably than the Revolving Credit Facility, except those that only apply after the Latest Maturity Date with respect to the Revolving Credit Facility; provided, further, that no Additional/Replacement Revolving Credit Commitments may be incurred for the primary purpose of influencing the voting thresholds set forth in this Agreement.
(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 the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. Incremental Term Loans which may be made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments which may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld or delayed), by any existing Lender (it 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) 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 no existing Lender will the Administrative Agent shall have an obligation consented (not to make any be unreasonably withheld or delayed) to such L▇▇▇▇▇’s or Additional Lender’s making such Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Term Loans or providing such Incremental Facility, in an aggregate amount not in excess of the sum ofRevolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required unde
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Incremental Facilities. (a) The CompanySo long as no Event of Default under Subsection 9.1(a) or (f) exists or would arise therefrom, the Borrower shall have the right (on behalf of itself, or if agreed by all in the case of Incremental Loans the Lenders under the applicable Incremental Facilityproceeds of which will be subject to an escrow or other similar arrangement, a Guarantor an Escrow Subsidiary (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental FacilityEscrow Subsidiary, an “Additional Escrow Borrower”)), at any time and from time to time after the Closing Date, (i) may, by written notice to the Administrative Agent, request the establishment of new term loan commitments under one or more new tranches of term loan credit facilities denominated to be included in Dollars this Agreement (each, a the “New Incremental Term Loan FacilityCommitments”), (ii) and/or to increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Existing Term Loans by requesting new term loan commitments to be added to such an Existing Tranche of Term Loans (together with any New the “Supplemental Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term LoansCommitments”), “Incremental Term Loans”(iii) and/or to request the establishment of new commitments under one or more new tranches of Revolving Credit Commitments revolving facilities to be included in this Agreement (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an the “Incremental Revolving Commitments”), and (iv) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit FacilityCommitments” and, together with any the Incremental Term FacilityLoan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Facilities” andCommitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with Subsection 8.1(b)(i) and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Chief Financial Officer or a Responsible Officer of the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test). Any loans thereundermade in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion); provided that such amount may be less than $10,000,000 if such amount represents the then remaining aggregate principal amount available to be Incurred in compliance with Subsection 8.1(b)(i).
(b) Each request from the Borrower pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution, an “Additional Incremental Revolving Credit Loans” andLender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Term LoansCommitments, the “Incremental LoansLenders”); provided that no existing if such Additional Incremental Lender will have is not already a Lender hereunder or an obligation Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to make be unreasonably withheld, conditioned or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment). The Borrower may agree, in its sole discretion, to accept a lesser amount of any Incremental Facility, nor will Commitment than originally requested. In the Company event there are Lenders and Additional Incremental Lenders that have any obligation committed to approach any existing Lenders to provide any an Incremental Facility, in an aggregate amount not Commitment in excess of the sum ofmaximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate.
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit I-1 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit I-2 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan Documents (including amendments to Subsection 2.2(b) to increase the amortization payments or interest rate margins thereunder or add customary call protection provisions with respect thereto to allow for the applicable Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Subsection 2.8(c).
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, an Escrow Borrower (if applicable) and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Subsection 2.8; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors (it being understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Subsidiary Guarantor), and (other than with respect to proceeds of such Incremental Commitments which are subject to an escrow or other similar arrangement and any related deposit of cash, Cash Equivalents or Temporary Cash Investments to cover interest and premium in respect of such Incremental Commitments) will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term Loan Facility Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to a Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Lien on any asset (other than proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of cash, Cash Equivalents or Temporary Cash Investments to cover interest and premium in respect of such Incremental Loans) of any Loan Party that does not also secure the Term Loan Facility Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event or from Excess Cash Flow, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans pursuant to Subsection 4.4(e), on more than a ratable basis with the Initial Term Loans (after giving effect to any amendment in accordance with Subsection 11.1(d)(vi)); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) [reserved]; (iv) the maturity date and the weighted average life to maturity of any Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity (1) for customary bridge financings, which, subject to customary conditions (as determined by the Borrower in good faith, which determination shall be conclusive), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable or (2) pursuant to an escrow or similar arrangement with respect to the proceeds of such Incremental Term Loans); (v) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Lenders; provided that in the event that the applicable interest rate margins for any syndicated floating rate Incremental Term Loans denominated in Dollars with a Stated Maturity that is earlier than 12 months following the Initial Term Loan Maturity Date Incurred by the Borrower pursuant to the Ratio Incremental Facility, made on or prior to the
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Incremental Facilities. (a) The Company, Borrower may at any time or if agreed by all of from time to time after the Lenders under Restatement Agreement Effective Date and giving effect to the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under 2024 Refinancing Term Loans and the applicable Incremental Facility, an “Additional Borrower”) mayRevolving Credit Commitments, by written notice delivered to the Administrative Agent, request the establishment of (i) one or more new tranches additional Classes of term facilities denominated in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount loans or additional term loans of the Initial Term Loans, same Class of any Incremental Term Loans or any Extended Term Loans by requesting new existing Class of term loan commitments to be added to such Loans loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), the “Incremental Term Loans”), (ii) and/or request the establishment of one or more new tranches increases in the amount of the Revolving Credit Commitments of any Class (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilityeach such increase, an “Incremental Revolving Credit FacilityCommitment Increase”) or (iii) one or more additional Classes of revolving credit commitments in U.S. Dollars or any Alternative Currency (the “Additional/Replacement Revolving Credit Commitments,” and, together with any the Incremental Term FacilityLoans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” andand the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, subject to Section 1.11, at the loans thereundertime that any such Incremental 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 proviso to clause (b) below, no Event of Default (or, in 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 or 12.5) shall 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 in minimum increments of $1,000,000 or like amount in an Alternative Currency, as applicable, in excess thereof), and, subject to the first 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 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) 5.50:1.00 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 any the Incremental Term LoansBase 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 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) if consisting of a Credit Facility, shall rank equal in right of payment and security with the Initial Term Loans, Term B-1 Loans and Term B-2 Loans, 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, Term B-1 Loans and Term B-2 Loans) and shall only be guaranteed by the Loan 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, Term B-1 Loans and Term B-2 Loans, (D) shall have a maturity date (subject to clause (B) above), an amortization schedule (subject to clause (C) above), 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, (I) during the period commencing on the Restatement Agreement Effective Date and ending on the date that is six months after the Restatement Agreement Effective Date, in the event that the Effective Yield for any Incremental Term Loans denominated in U.S. Dollars (other than (x) Incremental Term Loans (1) established pursuant to the first proviso of Section 2.14(b), (2) having a final maturity date that is more than one year after the Initial Term Loan Maturity Date, (3) Incurred in connection with a Permitted Acquisition or Permitted Investment or (4) in an aggregate amount equal to or less than $145,000,000 or (y) 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) above and any such conversion or exchange is subject only to conditions customary for similar conversions or exchanges (clauses (x)(1) through (4) and (y), collectively, the “Incremental MFN Exceptions”)), is in the case of Incremental Term Loans denominated in U.S. Dollars 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% (this proviso, the “Incremental 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)(ii); provided, further, that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to Term SOFR, 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 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 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) 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 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) if consisting of a Credit Facility 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 Loan Parties on a senior basis and, (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 Issuing Lender, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable Issuing Lenders 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 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 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 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)).
(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 the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, including the currency types and denominations of the Borrower thereof. Incremental Term Loans may be made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld or delayed), by any existing Lender (it being understood that no existing Term Loan Lender will have an obligation to make a portion of any Incremental FacilityTerm Loan, nor no existing Lender with a Revolving Credit Commitment will the Company have any obligation to approach provide a portion of any Incremental Revolving Credit Commitment Increase and no existing Lenders 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, 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, each Issuing Lender and the Designated Acquisition Swingline Lender 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 14.6(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 FacilityRevolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, each applicable Issuing Lender shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 14.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) Commitments in respect of Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or in the case of an aggregate amount not in excess of the sum ofIncremental Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolvi
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Incremental Facilities. (a) The CompanyParent Borrower shall have the right, or if agreed by all of but not the Lenders under obligation, after the applicable Incremental FacilityClosing Date, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written upon notice to the Administrative AgentAgent (an “Incremental Borrowing Notice”), request the establishment of to incur one or more new tranches of additional term loan facilities denominated in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Loan Facility,” andand together with the Initial Term Loan Facility, any Loans made pursuant to an the “Term Loan Facilities” the loans under each Incremental Term Facility (including any New Term Loans)Loan Facility, “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments revolving facilities (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility,” and, together with any the loans under each Incremental Term Revolving Facility, “Incremental Facilities” Revolving Loans”), or one or more increases in the aggregate commitments under the Initial Revolving Facility (which may, with respect to any Incremental Revolving Facility or any increase to the Initial Revolving Facility, at the election of Parent Borrower and with the consent of the LC Issuer, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed), the Swing Line Commitment) (each, an “Incremental Initial Revolving Facility,” the loans thereunder, the “Incremental Initial Revolving Credit Loans” and”) (and each of the foregoing, together with any Incremental Term Loans, an “Incremental LoansFacility” and collectively, the “Incremental Facilities”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will in each case sharing in the Company have any obligation to approach any existing Lenders to provide any Incremental FacilityCollateral (as defined below) on a pari passu or junior basis, in an aggregate amount not of up to (w) $65.0 million minus the aggregate amount of Indebtedness incurred in excess reliance on clause (a)(x) of the sum ofdefinition of “Permitted Incremental Indebtedness”, so long as on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Facility, the Total Leverage Ratio is less than the Total Leverage Ratio covenant level then in effect under Section 7.06 minus 0.25 (even if Holdings would not otherwise exceed the Table of Contents Maintenance Covenant Level) plus (x) additional amounts so long as after giving effect to the incurrence of the Loans in respect of such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments (assuming the full amount thereof is drawn) and/or Permitted Incremental Indebtedness incurred under Section 7.03(w) and after giving effect to any Acquisition that may be consummated in connection therewith, the Total Leverage Ratio (calculated on a Pro Forma Basis and provided that (A) all Permitted Incremental Indebtedness incurred under Section 7.03(w) shall also be included in such calculation for this purpose, whether or not it would otherwise be included and (B) the proceeds of the Incremental Facility being incurred shall not be netted against indebtedness for purposes of the calculation relating to such incurrence) shall not be greater than 2.75 to 1.00; provided that (a) no commitment of any Lender may be increased without the consent of such Lender, (b) no Event of Default exists after giving effect thereto (provided, however, that if the proceeds of such Incremental Facilities are used to finance a Permitted Acquisition, Permitted Change of Control or other Investment permitted by this Agreement (and costs reasonably related thereto), it shall only be required that no Specified Event of Default shall be continuing at the time of incurrence), (c) any Incremental Facility that is an increase in the aggregate amount of the Initial Revolving Commitment shall be on the same terms and pursuant to the same documentation as the Initial Revolving Commitment, (d) the yield applicable to any Incremental Initial Revolving Facility shall be equal to the corresponding yield on the Initial Revolving Facility (calculated for such Incremental Initial Revolving Facility and Initial Revolving Facility inclusive of any original issue discount and/or upfront fee percentage paid to all Lenders, but exclusive of any arrangement, underwriting or similar fees); provided, that Parent Borrower may increase the pricing of the Initial Revolving Facility, without the consent of the Administrative Agent or any Lender, such that the foregoing is true, including increasing the Applicable Margin, the Commitment Fee, adding or increasing an existing “LIBOR Floor” (if applicable), and paying additional original issue discount and/or upfront fees, (e) in the case of any Incremental Revolving Facility, (i) such Incremental Revolving Facility shall have a final maturity no earlier than the Initial Revolving Facility Termination Date and (ii) such Incremental Revolving Facility shall provide that (A) the borrowing and repayment (except for (1) payments of interest and fees at different rates on the Incremental Revolving Credit Facility (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Facility and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (C) below)) of Loans with respect to Incremental Revolving Credit Commitments after the effectiveness of such Incremental Revolving Facility shall be made on a pro rata basis with all other Revolving Credit Commitments on the date of effectiveness of such Incremental Revolving Facility, (B) subject to the provisions of Sections 2.04(e) and 2.05(h) to the extent dealing with Swing Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Facilities with a longer maturity date, all Swing Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments on the effective date of such Incremental Revolving Facility (and except as provided in Section 2.04(e) and Section 2.05(h), without giving effect to changes thereto on an earlier maturity date with respect to Swing Loans and Letters of Credit theretofore incurred or issued), (C) Incremental Revolving Facilities may include provisions relating to swing line 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 swing line lender and letter of credit issuer, as applicable, which shall be determined by the Parent Borrower, the lenders of such commitments and the applicable letter of credit issuers and swing line lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Revolving Credit Assumption Agreement) to the terms relating to Swing Loans and Letters of Credit with respect to Table of Contents the Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (D) assignments and participations of Incremental Revolving Commitments and Loans shall be governed by the same assignment and participation provision, (f) the yield applicable to any Incremental Term Loan Facility or Incremental Revolving Facility, shall not be more than 0.50% higher than the yield on the corresponding Initial Facility (calculated for both such Incremental Facility and the corresponding Initial Facility inclusive of any “LIBOR Floor” (if, applicable), original issue discount and/or upfront fees paid to all Lenders under such Initial Facility, but exclusive of any arrangement, underwriting or similar fee paid), unless the yield with respect to the applicable Initial Facility is increased by an amount equal to or greater than the difference between the yield with respect to the Incremental Facility and the corresponding yield on such Initial Facility minus 0.50% (for purposes of determining the difference in “yield” as to such Incremental Facility and the corresponding Initial Facility, yield shall be calculated by adding the difference with respect to such Incremental Facility and such corresponding Initial Facility of each of the following: (i) Applicable Revolving Loan Margin or Applicable Term Loan Margin, as applicable, (ii) “LIBOR floor”, which shall be equated to yield by taking the difference of (A) the “LIBOR floor” of such facility and (B) the 3-month Adjusted Eurodollar Rate as of a date ten (10) Business Days prior to the closing of such Incremental Facility and (iii) original issue discount and/or upfront fees, which shall be equated to yield by dividing such original issue discount and/or upfront fee percentage (as of the date such facility was funded, in each case), by four (4) (provided, that for purposes of calculating the yield related to the original issue discount and/or upfront fee percentage of the Incremental Facilities, if the Weighted Average Life to Maturity of the Incremental Facility is shorter than 4 years, the actual Weighted Average Life to Maturity), (g) the maturity of any Incremental Term Loan Facility shall not be earlier than the Latest Maturity Date of the Initial Term Loans, (h) the Weighted Average Life to Maturity of any Incremental Term Loan Facility shall not be shorter than that of the Initial Term Loan Facility, (i) the Incremental Term Loan Facility shall provide that such facility shall be prepaid with the proceeds of mandatory prepayment events on a pro rata basis (but not greater than pro rata basis) with other then outstanding Initial Term Loans, (j) the covenants, events of default and guarantees of such Incremental Term Loan Facility or Incremental Revolving Facility, if not consistent with the terms of the corresponding Initial Facility (A) shall be as mutually agreed upon between Parent Borrower and lenders providing such Incremental Facility and (B) shall not be more restrictive to Parent Borrower, when taken as a whole, than the terms of the corresponding Initial Facility unless (1) Lenders under the corresponding Initial Facility also receive the benefit of such more restrictive terms (without any consent being required) or (2) any such provisions apply after the Latest Maturity Date of the corresponding Initial Facility and (k) (x) Incremental Term Loan Facilities shall be requested in minimum amounts of $2,500,000 or a higher multiple of $1,000,000 and (y) Incremental Revolving Facilities shall be requested in minimum amounts of $1,000,000 or a higher multiple of $1,000,000. The proceeds of each Incremental Facility may be used to finance working capital needs, for general corporate purposes and to finance any transactions permitted by this Agreement . The commitments in respect of any Incremental Facilities may be denominated in U.S. Dollars and/or other currencies as agreed among Parent Borrower, the Administrative Agent and the lenders providing such Incremental Facilities. Each Incremental Borrowing Notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Credit Commitments being requested, (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than five (5) Business Days nor more than sixty (60) days after the date of Incremental Borrowing Notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments, if any, are to be Termss Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). Table of Contents
(b) Any Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The applicable Borrower, each Incremental Term Lender and the Administrative Agent shall execute and deliver an Incremental Term Loan Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. The Incremental Term Loan Assumption Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents that are consistent with and as may be necessary, in the reasonable opinion of the Administrative Agent and the Parent Borrower, to effect the provisions of this Section 2.18. The Borrowers, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent would be required under Section 11.12(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. Each Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Term Loans, Incremental Revolving Loans or Incremental Initial Revolving Loans, as applicable, to be made thereunder, consistent with the provisions set forth in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, or otherwise to effect the provisions of this Section 2.18, notwithstanding any requirements of Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrowers and furnished to the other parties hereto.
(c) Upon each increase in the Revolving Commitments under the Initial Revolving Facility pursuant to this Section 2.18, each Lender with a Revolving 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 Initial Revolving Facility (each, an “Incremental Initial Revolving Facility Lender”) in respect of such increase, and each such Incremental Initial Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving 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 Swing Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Initial Revolving Facility Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Initial Revolving Facility be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.04. 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. Table of Contents
(d) Upon each provision of an Incremental Revolving Facility, each Lender with a Revolving Commitment immediately prior to the providing of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such Lender will automatically and with
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Incremental Facilities. (a) The CompanySo long as no Event of Default under Subsection 9.1(a) or (f) exists or would arise therefrom, the Borrower shall have the right (on behalf of itself, or if agreed by all in the case of Incremental Loans the Lenders under the applicable Incremental Facilityproceeds of which will be subject to an escrow or other similar arrangement, a Guarantor an Escrow Subsidiary (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental FacilityEscrow Subsidiary, an “Additional Escrow Borrower”)), at any time and from time to time after the Closing Date, (i) may, by written notice to the Administrative Agent, request the establishment of new term loan commitments under one or more new tranches of term loan credit facilities denominated to be included in Dollars this Agreement (each, a the “New Incremental Term Loan FacilityCommitments”), (ii) and/or to increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Existing Term Loans by requesting new term loan commitments to be added to such an Existing Tranche of Term Loans (together with any New the “Supplemental Term Loan FacilityCommitments”), an “Incremental Term Facility” and, any Loans made pursuant (iii) to increase the Existing Revolving Commitments by requesting new Revolving Loan Commitments be added to an Incremental Term Facility Existing Tranche of Existing Revolving Commitments (including any New Term Loansthe “Supplemental Revolving Commitments”), “Incremental Term Loans”(iv) and/or to request the establishment of new commitments under one or more new tranches of Revolving Credit Commitments revolving facilities to be included in this Agreement (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an the “Incremental Revolving Commitments”), and (v) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit FacilityCommitments” and, together with any the Incremental Term FacilityLoan Commitments, Supplemental Term Loan Commitments, Supplemental Revolving Commitments and the Incremental Revolving Commitments, the “Incremental Facilities” andCommitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with Subsection 8.1(b)(i) and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Chief Financial Officer or a Responsible Officer of the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test). Any loans thereundermade in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof (in the case of Incremental Commitments denominated in Dollars or the Dollar Equivalent thereof in the case of Incremental Commitments denominated in any Designated Foreign Currency (other than Canadian Dollars or Euros)), in a minimum aggregate amount of at least C$10,000,000 and in integral multiples of C$5,000,000 in excess thereof (in the case of Incremental Commitments denominated in Canadian Dollars) or in a minimum aggregate amount of at least €7,500,000 and in integral multiples of €5,000,000 in excess thereof (in the case of Incremental Commitments denominated in Euro) (or, in each case, such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion); provided that such amount may be less than $10,000,000, C$10,000,000 or €7,500,000, as applicable, if such amount represents the then remaining aggregate principal amount available to be Incurred in compliance with Subsection 8.1(b)(i).
(b) Each request from the Borrower pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution, an “Additional Incremental Revolving Credit Loans” andLender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Term LoansCommitments, the “Incremental LoansLenders”); provided that no existing if such Additional Incremental Lender will have is not already a Lender hereunder or an obligation Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent and (in the case of a Supplemental Revolving Commitment) the consent of the Swing Line Lender (if any) or any Issuing Bank (in each case, such consent not to make be unreasonably withheld, conditioned or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment). The Borrower may agree, in its sole discretion, to accept a lesser amount of any Incremental Facility, nor will Commitment than originally requested. In the Company event there are Lenders and Additional Incremental Lenders that have any obligation committed to approach any existing Lenders to provide any an Incremental Facility, in an aggregate amount not Commitment in excess of the sum ofmaximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate.
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or Revolving Commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit I-1 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit I-2 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, as applicable. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan Documents (including amendments to Subsection 2.2(b) to increase the amortization payments or interest rate margins thereunder or add customary call protection provisions with respect thereto to allow for the applicable Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Subsection 2.8(c).
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, an Escrow Borrower (if applicable) and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Subsection 2.8; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors (it being understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Subsidiary Guarantor), and (other than with respect to proceeds of such Incremental Commitments which are subject to an escrow or other similar arrangement and any related deposit of cash, Cash Equivalents or Temporary Cash Investments to cover interest and premium in respect of such Incremental Commitments) will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Cash Flow Facilities Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the ABL/Cash Flow Intercreditor Agreement, a Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Cash Flow Facilities Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Lien on any asset (other than proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of cash, Cash Equivalents or Temporary Cash Investments to cover interest and premium in respect of such Incremental Loans) of any Loan Party that does not also secure the Cash Flow Facilities Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment from the Net Available Cash of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event or from Excess Cash Flow, to the extent the Net Available Cash of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans pursuant to Subsection 4.4(e), on more than a ratable basis with the Initial Term Loans (after giving effect to any amendment in accordance with Subsection 11.1(d)(vi)); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date of any Incremental Revolving Commitment shall be no earlier than, and no scheduled mandatory commitment reduction in respect thereof shall be required prior to the Initial Revolving Maturity Date; (iv) the maturity date and the weighted average life to maturity of any Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity (1) for customary bridge financings, which, subject to customary conditions (as determined by the Borrower in good faith, which determination shall be conclusive), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable or (2) pursuant to an escrow or similar arrangement with respect to the proceeds of such Incremental Term Loans); (v) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Lenders; provided that in the event that the applicable interest rate margins for any syndicated floating rate Incremental Term Loans denominated in Dollars, the principal amount of which exceeds the MFN Threshold Amount, that are secured on a pari passu basis by the Collateral securing the Cash Flow Facilities Obligations and with a Stated Maturity that is earlier than 12 months following the Initial Term Loan Maturity Date Incurred by the Borrower under any Incremental Term Loan Commitment, made on or prior to the 12-month anniversary of the Third Amendment Effective Date and not Incurred to finance or refinance, or otherwise in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary, or any other Investment, are higher than the applicable interest rate margin for the Tranche B Term Loans by more than 75 basis points, then the effective interest rate margin for the applicable Tranche B Term Loans at the time such Incremental Commitments become effective (the “Existing Interest Rate”) shall be increased to the extent necessary so that the Existing Interest Rate is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 75 basis points (the “Adjusted Interest Rate”, and the number of basis points by which the Existing Interest Rate is increased, the “Increased Amount”); provided, further that, in determining the applicable interest rate margins for the applicable Initial Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such Initial Term Loans or any Incremental Term Loan, as applicable, in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest rate based on an assumed four-year life to maturity) (provided that, if such Initial Term Loans are issued in a manner such that all such Initial Term Loans were not issued with a uniform amount of OID or upfront fees within the applicable Tranche of Initial Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term Loans shall be determined on a weighted average basis); (B) any arrangement or structuring fees payable in connection with the Incremental Term Loans or any other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Incremental Lenders providing such Incremental Term Loans shall, in each case, be excluded; (C) any amendments to the Applicable Margin or effective interest rate margin on the applicable Initial Term Loans that became effective subsequent to the Closing Date but prior to the effective time of such Incremental Term Loans shall also be included in such calculations, (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the applicable Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for such Initial Term Loans shall be required, to the extent an increase in the interest rate floor for such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to such Initial Term Loans shall be increased by such amount to the extent necessary to adjust the applicable Existing Interest Rate to be equal to the applicable Adjusted Interest Rate, (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the applicable Tranche of Initial Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Initial Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Initial Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans
Appears in 1 contract
Sources: Cash Flow Credit Agreement (Cornerstone Building Brands, Inc.)
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) Parent Borrower may, by written notice to the Administrative AgentAgent at any time, on one or more occasions, request the establishment of to (i) add one or more new tranches Classes of term facilities denominated in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial any Class of Term Loans, any Incremental Term Loans or any Extended Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facilitysuch new Class or increase, an “Incremental Term Facility” and, and any Loans loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request (ii) increase the establishment principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new tranches Classes of Revolving Credit Commitments incremental revolving facilities (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilitysuch new Class or increase, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, ”; and the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, ) in an aggregate amount not to exceed the Incremental Amount. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof or (y) equal to the remaining Incremental Amount), (ii) the applicable Borrower and (iii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the sum ofIncremental Facilities shall execute and deliver to the Administrative Agent an Incremental Facility Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Facility Agreement; provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Latest Maturity Date with respect to Term Loans then outstanding,
(ii) the weighted average life to maturity of any Incremental Term Loan shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term Loans, calculated as of the date of making such Incremental Term Loan,
(iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date,
(iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then-existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),
(v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then-existing Revolving Commitments,
(vi) the All-In-Yield (and the components thereof) applicable to any Incremental Facility may be determined by the applicable Borrowers and the lender or lenders providing such Incremental Facility.
(vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitments hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time,
Appears in 1 contract
Incremental Facilities. (ai) The CompanyAfter the Restatement Effective Date and before the Original Term Loan Maturity Date (with respect to Original Term Loans) and, or if agreed by all of the Lenders under Tranche B Term Loan Maturity Date (with respect to Tranche B Term Loans), the applicable Incremental FacilityRevolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), a Guarantor (any such Guarantoras applicable, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, may request the establishment of (x) one or more new additional tranches of term facilities denominated loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) one or more increases in Dollars the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Facilities Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Facilities Amount”) of the Incremental Loan Commitments shall not exceed $785,000,000 plus the amount of the Term Loans repaid with the proceeds of (1) Senior Unsecured 2019 Notes or (2) any Incremental Term Loans; provided further, that the Maximum Incremental Facilities Amount shall be increased by an additional $200,000,000 upon consummation of the DTA Acquisition Step 1 in accordance with the terms and conditions set forth herein, and (ii) after the Restatement Effective Date and before the Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental 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. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment and (ii) any entity providing all or a portion of the Incremental Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed).
(b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that
(i) except for any Incremental Loan Commitment in connection with the DTA Acquisition and the Tranche A Term Loans, no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments,
(ii) except for any Incremental Loan Commitment in connection with the DTA Acquisition or the Avis Europe Acquisition, the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof),
(iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans,
(iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date,
(v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments,
(vi) (x) with respect to the Term Loans (other than the Tranche A Term Loans, any other Incremental Tranche A Term Loans and the Tranche B Term Loans), if the final maturity date of any Incremental Term Loans is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (except for any Incremental Tranche A Term Loans) (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans and, any other Incremental Tranche A Term Loans and the Tranche B Term Loans), and (y2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (x1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (y2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (z3) 50 basis points, and (y) with respect to the Tranche B Term Loans, the interest rate margin in respect of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) incurred after the Tranche B Term Facility Funding Date (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Tranche B Term Loans that is in effect on the Increased Amount Date, and (2) the upfront fees paid to all of the Tranche B Term Lenders in respect of such Tranche B Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Tranche B Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loan (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Tranche B Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Tranche B Term Lenders in respect of such Tranche B Term Loans and (3) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
(▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and
(viii) the Increment Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “New Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan FacilityLender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans.
(c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and/or increase and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving 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 Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (y) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Initial Term Loans, Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility.
(d) On any Increased Amount Date on which any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments Loan Commitments are effected, subject to be added to such Loans the satisfaction of the foregoing terms and conditions, (together i) each Person with any New an Incremental Term Loan FacilityCommitment (each, an “Incremental Term Facility” andLoan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, any and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments Synthetic L/C Commitment (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, Synthetic L/C Lender”; together with any Incremental Revolving Lenders and Incremental Term FacilityLoan Lenders, the “Incremental Facilities” and, the loans thereunder, Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. Notwithstanding anything in this Agreement to the contrary, (i) the references to the Term Loans in this Section 2.23 shall be deemed to include the Replacement Term Loans and (ii) the references to the Revolving Credit Commitments or the Revolving Loans in this Section 2.23 shall be deemed to include the Extended Revolving Commitments or the Extended Revolving Loans” and, together with any as applicable. For the avoidance of doubt, (i) the Tranche A Term Loans constitute Incremental Tranche A Term Loans, and (ii(ii) the Tranche B Term loans constitute Incremental Term Loans, “and (iii) the Tranche A Term Lenders shall be Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental FacilityTerm Loan Lenders, in an aggregate amount not in excess each case, for all purposes of this Agreement and the sum ofother Loan Documents.
Appears in 1 contract
Sources: Incremental Tranche B Term Facility Agreement (Avis Budget Group, Inc.)
Incremental Facilities. (a) The CompanyBorrowers or any Guarantor or, or if agreed by all solely in the case of a New Term Loan Facility denominated in an Alternative Currency, any Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Lenders under the applicable Incremental Facility, a Guarantor Administrative Agent (any such Guarantor, Guarantor or Restricted Subsidiary for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment of one or more new tranches of term facilities denominated in Dollars Dollars, an Alternative Currency or any other currency agreed to by the applicable Borrower, the Administrative Agent and the Lenders providing such New Term Loan Facility (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company Borrower have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum ofof (x) the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) and (ii) 100% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding, less any amount of Indebtedness incurred pursuant to clause (x)(i) of Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, (i) in case of Incremental Facilities that are secured on a pari passu basis with the Obligations, the First Lien Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (ii) in case of Incremental Facilities that are secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (iii) in case of Incremental Facilities that are unsecured, the Fixed Charge Coverage Ratio is less than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Credit Facilities are fully drawn) and, in each instance, for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that Incremental Facilities (1) shall be incurred pursuant to clause (y) above prior to utilization of any capacity pursuant to clause (x) above, (2) amounts incurred in reliance on clause (x) above concurrently with amounts incurred in reliance on clause (y) above shall not be included as Indebtedness in the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, for purposes of calculating any amounts that may be incurred pursuant to clause (y) above on the same day and (3) if all or any portion of any Incremental Facility was originally incurred or issued in reliance on clause (x) above and thereafter such amount could have been incurred pursuant to clause (y) above, such amount of such Incremental Facility shall be reclassified, as the applicable Borrower may elect from time to time, as having been incurred pursuant to clause (y) above and thereafter shall not count as utilization of clause (x) above; provided, further, that, notwithstanding the foregoing or anything to the contrary set forth herein, (1) Incremental Term Loans may be incurred without regard to any of the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on or about the date of incurrence to permanently prepay and refinance Term Loans of any Tranche selected by the applicable Borrower on a dollar-for-dollar basis, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso, and (2) New Revolving Credit Facilities may be incurred without regard to the foregoing limits to the extent that such New Revolving Credit Facilities are used on or about the date of incurrence to refinance and permanently reduce Revolving Credit Commitments of any Tranche selected by Borrower on a dollar-for-dollar basis, and any such Revolving Credit Commitments thereunder (the “Refinancing Incremental Revolving Credit Commitments”) shall be deemed to have been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the applicable Incremental Facility 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 (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) and by the L/C Issuer to the extent such consent, if any, would be required under Section 11.06 for an assignment of Loans or Revolving Credit Commitments (any such Affiliate or other Person, a “New Incremental Lender”) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the amounts of such allocations and (iii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Credit Facility. Such Incremental Facility shall become effective as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Facility (except that, with respect to this clause (A), solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist), (B) both before and after giving effect to such Incremental Facility, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid (except, solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, (x) with respect to Section 5.02(a), such Incremental Facility shall only be subject to customary “funds certain provisions” and (y) with respect to Section 5.02(b), such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist); (C) any Incremental Facility provided by any New Incremental Lender shall be effected pursuant to one or more joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by a Borrower (or Additional Borrower, if applicable) and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers 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.
(b) The creation or provision of any Incremental Facility or Incremental Loan (and, in connection therewith, any amendment to the terms of this Agreement that is necessary or appropriate to implement the provisions thereof or that is favorable to the then-existing Lenders, in each case, as reasonably determined by the Administrative Agent in its sole discretion) shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment.
(c) The terms and provisions of any New Revolving Credit Facility (other than pricing, maturity and fees) shall be, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the existing Revolving Credit Facility; provided that, (i) no New Revolving Credit Facility shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date of any Tranche of Revolving Credit Loans (or, in the case of Refinancing Incremental Revolving Credit Commitments, the final maturity date of the Tranche of Revolving Credit Commitments that are being refinanced), (ii) any guarantor of any New Revolving Credit Facility shall also be a Guarantor; provided, that, in the event any New Revolving Credit Facility is incurred by a Foreign Subsidiary of PSP, such New Revolving Credit Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (iii) if secured, such New Revolving Credit Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is materially more restrictive, when taken as a whole, to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of PSP, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent and (iv) each New Revolving Credit Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent).
(d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Initial Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the Initial Term Loans, as applicable; provided that, except as otherwise set forth herein or in the joinder agreement set forth in clause (a), then (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity such refinanced Tranche of the Term Loans, (or, in the case of any New Term Loans that are Refinancing Incremental Term Loans, the weighted average life to maturity of the Tranche of Term Loans that are being refinanced), (ii) the final maturity date with respect to any New Term Loans shall be no earlier than the maturity date of such refinanced Tranche (or, in the case of any New Term Loans that are refinancing Incremental Term Loans, the final maturity date of the Tranche of Term Loans that are being refinanced), (iii) if the Yield on any New Term Loans incurred no later than 12 months after the Closing Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Rate then in effect for any Term Loans, then the Applicable Rate then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term Loans (and if the margins on the New Term Loans are subject to a leveraged-based pricing grid, appropriate increases to the Applicable Rates for the Term Loans, consistent with the foregoing, shall be made) (this clause (iii), the “MFN Adjustment”), (iv) any guarantor of any New Term Loan Facility shall also be a Guarantor; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of PSP, such New Term Loan Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (v) if secured, such New Term Loan Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is more restrictive to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of PSP, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (vi) each New Term Loan Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (vii) any New Term Loan Facility may be denominated in Euros or Pounds Sterling so long as (A) the borrower thereunder is a Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent and (B) such New Term Loan Facility is subject to guarantee, collateral and collateral allocation arrangements that are reasonably satisfactory to PSP and the Administrative Agent. Each joinder agreement referred to in Section 2.14(a) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, as reasonably determined by the Administrative Agent in its sole discretion, to effect the provision of this Section 2.14.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Term Loans or Revolving Credit Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Term Loans or Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Eurocurrency Rate Loan to be converted into a Base Rate Loan on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Eurocurrency Rate Loans on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Eurocurrency Rate Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans is to be allocated to an existing Interest Period for a Eurocurrency Rate Loan then, subject to Section 2.08(b), the interest rate applicable to such Incremental Loan for the remainder of such Interest Period shall equal the Adjusted Eurocurrency Rate for a period approximately equal t
Appears in 1 contract
Incremental Facilities. (a) The Company, Borrower may from time to time on or if agreed by all of after the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) mayFourth Amendment Closing Date, by written notice to the Administrative Agent, request (i) an increase to the existing Revolving Commitments (any such increase, the “New Revolving Commitments” and any Revolving Loans thereunder, the “New Revolving Loans”) and/or (ii) an increase to an existing Class of Term Loans and/or the establishment of one or more Term Loan Commitments hereunder (the “New Term Loan Commitments,” and collectively with any New Revolving Commitments, the “New Commitments” and each, individually, a “New Commitment”), in any case, by an amount not in excess of the sum of (x) from and after the Fourth Amendment Closing Date, $360,000,000 in the aggregate plus (y) the aggregate principal amount of additional New Commitments so long as, on a Pro Forma Basis (assuming, in the case of any New Commitments, that the entire amount of such New Revolving Commitments and New Term Loan Commitments were fully funded on the effective date of such increase and excluding the cash proceeds received by the Borrower in respect of any such New Commitments) and after giving effect to any Permitted Acquisitions and any Limited Conditionality Acquisition (if applicable pursuant to Section 1.5) consummated in connection therewith, (1) in the case of loans under such New Commitments secured by Liens on the Collateral that rank pari passu with the liens on the Collateral securing the Facilities (other than any such Liens that are junior), the First Lien Net Leverage Ratio on a Pro Forma Basis does not exceed 4.00 to 1.00 and (2) in the case of loans under such New Commitments secured by Liens that rank junior to the Liens on the Collateral securing the Facilities, the Senior Secured Net Leverage Ratio on a Pro Forma Basis does not exceed 5.50 to 1.00, plus (z) the aggregate amount of all voluntary prepayments of the Term Loans outstanding on the Fourth Amendment Closing Date and Revolving Loans pursuant to Section 2.11 (and accompanied by a reduction of the Revolving Commitments pursuant to Section 2.8(b) in the case of a prepayment of Revolving Loans) made prior to such time except to the extent funded with the proceeds of Indebtedness; provided, however, that notwithstanding the foregoing, the Borrower may, at any time following the Fourth Amendment Closing Date and on or prior to the earlier of (i) June 30, 2020 and (ii) the Taurus Special Mandatory Prepayment request the establishment of one or more Term Loan Commitments hereunder (or, if the Borrower and the Administrative Agent so agree, an increase to the existing Tranche B-1 Term Loan Commitments) (such New Commitments, the “Taurus Term Loan Facility”) in an amount not to exceed $400,000,000 in the aggregate; provided that (1) the proceeds of the Taurus Term Loan Facility may only be used to finance the Taurus Acquisition, (2) the Increased Amount Date with respect to the Taurus Term Loan Facility shall occur on the date of the consummation of the Taurus Acquisition and (3) any establishment and/or incurrence of the Taurus Term Loan Facility shall not decrease the maximum amount of New Commitments available under clause (x) above. Each such notice shall specify (i) 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 fifteen (15) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as may be agreed to by the Administrative Agent) and (ii) the identity of each Lender or other Person reasonably acceptable to the Administrative Agent (such other Person, a “New Revolving Credit Lender” or “New Term Loan Lender,” as applicable, and collectively each a “New Lender” and together “New Lenders”) to whom the Borrower proposes any portion of such New Revolving Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent (and/or its Affiliates) may elect or decline to arrange such New Revolving Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the New Revolving Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Commitment or a New Term Loan Commitment; provided, further, that, to the extent the consent of any party hereto is required for a proposed assignment under Section 10.4(b)(iii), such consent requirement shall apply to any New Lender under this Section 2.24 as though such New Lender were a proposed assignee under Section 10.4(b)(iii). All New Commitments shall become effective as of such Increased Amount Date; provided, that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Commitments (provided that, in connection with any Limited Conditionality Acquisition, it shall only be required that no Event of Default pursuant to Sections 8.1(a), 8.1(b), 8.1(h), 8.1(i) or 8.1(j) shall exist on such Increased Amount Date before or after giving effect to such New Commitments); (ii) the representations and warranties set forth in this Agreement and the other Loan Documents shall be true and correct as in all material respects of such Increased Amount Date before and after giving effect to such New Commitments (provided that, in connection with any Limited Conditionality Acquisition, only the Specified Representations shall be required to be true and correct in all material respects on such Increased Amount Date before and after giving effect to such New Commitments); (iii) if the New Commitments are permitted to be incurred pursuant to sub-clause (y) of the first sentence of this clause (a), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the First Lien Net Leverage Ratio or Senior Secured Net Leverage Ratio, as applicable, and executed by a Responsible Officer of the Borrower certifying the requirements of such sub-clause (y) have been met; (iv) for each New Lender (other than an existing Lender), the New Commitments shall be effected pursuant to one or more joinder agreements in form and substance reasonably satisfactory to the Administrative Agent executed and delivered by the Borrower, such New Lender, and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 2.20(g); (v) the Borrower shall make any payments required, if any, pursuant to Section 2.19 in connection with the New Revolving Commitments; (vi) both before and after giving effect to the making of any new tranches Loans, each of the conditions set forth in Section 3.2 shall be satisfied; and (vii) 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.
(b) On any Increased Amount Date on which New Revolving Commitments are effected, subject to the satisfaction of the terms and conditions herein (i) each of the Revolving Credit Lenders shall assign to each of the New Revolving Credit Lenders agreeing to provide New Revolving Commitments, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date, if any, as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Credit Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (ii) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each New Revolving Loan shall be deemed, for all purposes, a Revolving Loan and (iii) each New Revolving Credit Lender shall become a Revolving Credit Lender with respect to the New Revolving Commitment and all matters relating thereto. The terms and provisions of the New Revolving Commitments and the New Revolving Loans shall be identical to the Revolving Commitments and the Revolving Loans respectively; provided that (i) New Revolving Commitments incurred pursuant to clause (a) above shall rank pari passu with or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Secured Obligations (provided that if such New Revolving Commitments rank junior in right of security with the Liens on the Collateral securing the Secured Obligations, such New Revolving Commitments shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent); (ii) any such New Revolving Commitments shall have no amortization and the final maturity date of any such New Revolving Commitments shall be no earlier than the Revolving Commitment Termination Date with respect to the existing Revolving Loans; (iii) such New Revolving Commitments may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) than the existing Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made; (iv) there shall be no obligor in respect of any New Revolving Commitments that is not a Loan Party; (v) such New Revolving Commitments shall not be secured by any assets not securing the Obligations and (vi) except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to clauses (i) through (v) of this provision, be determined by the Borrower and the New Revolving Credit Lenders in their sole discretion), the New Revolving Loans shall have substantially similar terms as the existing Revolving Loans or such other terms as shall be reasonably satisfactory to the Administrative Agent.
(c) On any Increased Amount Date on which any New Term Loan Commitments are effective, subject to the satisfaction of the terms and conditions herein and in the applicable Incremental Amendment (as defined below), (x) each New Term Loan Lender of any series shall make a term facilities denominated loan to the Borrower (each a “Term Loan”) in Dollars an amount equal to its New Term Loan Commitment of such series, and (y) each New Term Loan Lender shall become a Term Loan Lender hereunder with respect to the New Term Loan Commitment of such series and the Term Loans of such series made pursuant thereto. The terms and provisions of any loans extended pursuant to the New Term Loan Commitments (including interest rate margins, prepayment premiums, call protection, fees, amortization, mandatory and optional prepayments (including Term Loan purchase rights, if any) associated with such New Commitments), shall be established pursuant to an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent, the New Term Loan Lenders and the Borrower (each, an “Incremental Amendment”); provided, that, any Term Loans funded under the New Term Loan Commitments (each, a “New Term Loan FacilityLoan”) and/or increase incurred pursuant to clause (a) above shall rank pari passu or, at the principal amount option of the Initial Borrower, junior in right of security with the Liens on the Collateral securing the Secured Obligations (provided that if such New Term Loans rank junior in right of security with the Liens on the Collateral securing the Secured Obligations, such New Term Loans (x) shall be established as a separate Class of Term Loans from the existing Term Loans, any Incremental (y) such New Term Loans or any Extended shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent and (z) for the avoidance of doubt, if such New Term Loans by requesting new rank junior in right of security with the Liens on the Collateral securing the Secured Obligations, such New Term Loans shall not be subject to clause (vii) below); (ii) the final maturity date of any such New Term Loans that constitute a “term loan commitments B” facility primarily marketed to institutional investors shall be added no earlier than the Latest Maturity Date; (iii) the Weighted Average Life to Maturity of any such New Term Loans that constitute a “term loan B” facility primarily marketed to institutional investors shall be no shorter than the remaining Weighted Average Life to Maturity of the existing Term Loans; (together iv) such New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) than the existing Term Loans in any mandatory prepayment hereunder (provided that no New Term Loans may participate in a Cordillera Special Mandatory Prepayment and/or Taurus Special Mandatory Prepayment); (v) there shall be no obligor in respect of any New Term Loans that is not a Loan Party; (vi) such New Term Loans shall not be secured by any assets not securing the Obligations; (vii) the All-in Yield shall be as agreed by the Borrower and the applicable New Term Loan Lenders; provided that with respect to any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made incurred pursuant to an Incremental Term Facility clause (including a) above (other than any New Term Loans)Loans in respect of the Taurus Term Loan Facility) that (x) is secured by Liens on the Collateral that are pari passu in right of security with the Liens securing the Obligations, “Incremental (y) has a final maturity date that is earlier than the date that is two years following the Term Loan Maturity Date with respect to the Tranche B-1 Term Loans and (z) has a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity that is two years longer than the Weighted Average Life to Maturity of the existing Term Loans, the All-in Yield in respect of any such New Term Loans may exceed the All-in Yield in respect of the Tranche B-1 Term Loans by no more than 0.50%, or, if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) and/or request then the establishment Applicable Rate (or the “interest rate floor” as provided in the following proviso) applicable to such Tranche B-1 Term Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50% (it being understood that if such New Term Loans include an interest rate floor greater than the applicable interest rate floor under the Tranche B-1 Term Loans, such differential between the interest rate floors shall be equated to the Applicable Rate for purposes of one or more new tranches of Revolving Credit Commitments (eachdetermining whether an increase to the Applicable Rate under the Tranche B-1 Term Loans shall be required, a “New Revolving Credit Facility”) and/or request but only to the extent an increase in any the interest rate floor in the Tranche B-1 Term Loans would cause an increase in the Applicable Rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to the Tranche B-1 Term Loans shall be increased to the extent of Revolving Credit Commitments such differential between interest rate floors (together this proviso, the “MFN Protection”)); provided, however that with respect to any New Revolving Credit Term Loans in respect of the Taurus Term Loan Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental the All-in Yield in respect of such Taurus Term Facility, “Incremental Facilities” and, Loan Facility may not exceed the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental All-in Yield in respect of the Tranche B-1 Term Loans, or, if it does exceed such All-in Yield, then the Applicable Rate (or the “Incremental Loans”)interest rate floor” as provided in the following proviso) applicable to such Tranche B-1 Term Loans shall be increased such that after giving effect to such increase, there is no Term Yield Differential; provided that no existing Lender will have if such Taurus Term Loan Facility includes an obligation interest rate floor greater than the applicable interest rate floor under the Tranche B-1 Term Loans, such differential between the interest rate floors shall be equated to make any Incremental Facilitythe Applicable Rate for purposes of determining whether an increase to the Applicable Rate under the Tranche B-1 Term Loans shall be required, nor will but only to the Company have any obligation to approach any existing Lenders to provide any Incremental Facilityextent an increase in the interest rate floor in the Tranche B-1 Term Loans would cause an increase in the Applicable Rate then in effect thereunder, and in an aggregate amount such case the interest rate floor (but not in excess of the sum ofAp
Appears in 1 contract
Sources: Credit Agreement (E.W. SCRIPPS Co)
Incremental Facilities. (a)
(a) The CompanyParent Borrower shall have the right, but not the obligation, after the later of (i) the date on which a Successful Syndication occurs or if agreed by all of (ii) the Lenders under the applicable Incremental FacilityClosing Datethe Initial Term Loans are no longer outstanding, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written upon notice to the Administrative AgentAgent (an “Incremental Borrowing Notice”), to request the establishment of (A) (i) one or more new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans be made pursuant to one or more additional tranches of term facilities denominated in Dollars loans under this Agreement (each, a “New collectively with any Term Loan Facility”) and/or increase Increase, the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term LoansLoan Facilities”), “Incremental Term Loans”and/or (B) and/or request the establishment of one or more new tranches of increases in the aggregate commitments under the Initial Revolving Credit Commitments Facility (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” Increase”) (which may, with respect to any Incremental Revolving Increase, at the election of Parent Borrower and with the consent of the LC Issuer, include a proportionate increase to the LC Commitment Amount and, together with any Incremental Term Facilitythe consent of the Swing Line Lender, the Swing Line Commitment) (each, an “Incremental FacilitiesInitial Revolving Facility,” and, and the loans thereunder, the “Incremental Initial Revolving Credit Loans” and”) (and each of the foregoing, together with any Incremental Term Loans, an “Incremental LoansFacility” and collectively, the “Incremental Facilities”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facilityin each case, in an aggregate amount not of up to (x) $50,000,000 minus the aggregate amount of Indebtednessany Incremental Revolving Facilities incurred previously in excess reliance on this clause (x) and in reliance on clause (a)(x) of the sum definition of “Permitted Incremental Indebtedness”, plus (y) unlimited additional amountshereunder and all Permitted Refinancing Indebtedness in respect thereof and/or (B) one or more new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans be made pursuant to one or more additional tranches of term loans under this Agreement (collectively with any Term Loan Increase, the “Incremental Term Loan Facilities” and collectively with any Incremental Revolving Facility, the “Incremental Facilities” and each of the foregoing, an “Incremental Facility”) in an unlimited amount so long as, in the case of any amounts incurred under this clause (B), immediately after giving effect to the incurrence of the Loans in respect of such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments (assuming the full amount thereof is drawn) and/or Permitted Incremental Indebtedness incurred under Section 7.03(v) and after giving effect to any Specified Transaction that may be consummated in connection therewith, the First Lien Net Leverage Ratio (calculated on a Pro Forma Basis and provided that (I) all Permitted Incremental Indebtedness incurred under Section 7.03(v) shall also be included in such calculation for this purpose, whether or not such Indebtedness is secured (on a pari passu basis with, or junior basis to, the Obligations) or would otherwise be included, (II) all such Loans in respect of Incremental Term Loan Commitments and/or Revolving Commitments (including any Incremental Revolving Credit Commitment) (assuming the full amount thereof is drawn) and all Permitted Refinancing Indebtedness in respect thereof (but without duplication of the amount of any Indebtedness being refinanced by such Permitted Incremental Indebtedness) shall also be included in such calculation for this purpose, whether or not such Indebtedness is secured (on a pari passu basis with, or junior basis to, the Obligations) or would otherwise be included and (III) the proceeds of thesuch Incremental Facility and/or Permitted Incremental Indebtedness being incurred shall not be netted against indebtednessIndebtedness for purposes of the calculation relating to such incurrence) shall not be greater than 3.50 to 1.00 as of the last day of the Testing Period most recently ended on or prior to the date of such incurrence; provided that:
(1) no commitment of any Lender may be increased without the consent of such Lender;
(2) at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, but subject to Section 1.13, (A) no Event of Default exists after giving effect thereto; provided, however, that if the proceeds of such Incremental Facilities are used to finance a Permitted Acquisition or other Investment permitted by this Agreement (and costs reasonably related thereto), if agreed to by the lenders providing such Incremental Facility, it shall only be required that no Specified Event of Default shall be continuing at the time of the execution of the relevant acquisition agreement and (B) all representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects (except for (I) representations and warranties which expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date and (II) representations and warranties qualified by materiality, which shall be true and correct in all respects); provided that, if otherwise agreed to by the lenders providing any Incremental Facility the proceeds of which are to be used to finance a Permitted Acquisition or other Investment (other than an intercompany Investment) permitted by this Agreement, such requirements in this clause (B) shall be deemed to refer solely to, the Specified Representations and the Specified Purchase Agreement Representations, which shall be true and correct in all material respects (except for (I) representations and warranties which expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date and (II) representations and warranties qualified by materiality, which shall be true and correct in all respects);
(3) any such Incremental Facility shall (xw) rank pari passu or junior in right of payment with the Initial Facilities, (yx) only benefit from guarantees of Persons that also guarantee the Initial Facilities and (zy) be secured on a pari passu or junior basis by the Collateral or be unsecured (in which case, the Incremental Term Loan Facility pursuant to which the such Incremental Term Loans are extended will be established as a separate facility from the then existing Initial Term Loan Facility); provided that and (z) if secured, the obligations in respect thereof shall not be secured by any Lien on any asset of the Parent Borrower or any Restricted Subsidiary other than any asset constituting Collateral; provided that (i) any Incremental Facility that ranks junior in right of payment or security with the Initial Term Loan Facility shall be subject to a Customary Intercreditor Agreement or otherwise subject to intercreditor arrangements that are reasonably satisfactory to the Administrative Agent and (ii) any Incremental Facility that ranks junior in right of payment or security with the Initial Term Loan Facility or is unsecured shall be documented under separate documentation;
(4) (x) any Incremental Facility that is an Incremental Revolving Increase shall be (1) on the same terms and pursuant to the same documentation as the Initial Revolving Commitments on the date of such increase (other than the Incremental Amendment evidencing such increase) and (2) subject to the terms and conditions of Section 2.16(e) below and (y) any Incremental Facility that is a Term Loan Increase shall be on the same terms (except as set forth in Section 2.16(a)(6)) and pursuant to the same documentation as the Initial Term Loan Facility on the date of such increase (other than the Incremental Amendment evidencing such increase) and shall be added to (and form part of) each Borrowing of outstanding Term Loans under the applicable Class of Term Loans on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans of such Class;
(5) the yield applicable to any Incremental Initial Revolving Facility shall be equal to the corresponding yield on the Initial Revolving Facility (calculated for such Incremental Initial Revolving Facility and Initial Revolving Facility inclusive of any OID and/or upfront fee percentage paid to all Lenders, but exclusive of any arrangement, underwriting or similar fees); provided, that Parent Borrower may increase the pricing of the Initial Revolving Facility, without the consent of the Administrative Agent or any Lender, such that the foregoing is true, including increasing the Applicable Margin, the Commitment Fee, adding or increasing an existing Eurodollar Rate floor (if applicable), and paying additional OID and/or upfront fees;
(6) (A) in the case of a Term Loan Increase under an Incremental Term Loan Facility, shall have the Applicable Margin and amortization for the Class being increased or in the case of the Applicable Margin, higher than the Applicable Margin for the Class being increased as long as the Applicable Margin for the Class being increased shall be automatically increased as and to the extent necessary to eliminate such deficiency and (B) in the case of a new Class of Incremental Term Loans under an Incremental Term Loan Facility, the All-In Yield applicable to such Incremental Term Loans shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Initial Term Loans, plus fifty (50) basis points per annum unless the interest rate (together with, as provided in the proviso below, the Eurodollar Rate or Base Rate floor) with respect to the Initial Term Loans is increased so as to cause the then applicable All-In Yield under this Agreement on the Initial Term Loans to equal the All-In Yield then applicable to the Incremental Term Loans, minus fifty (50) points; provided if such Incremental Term Loan includes an Eurodollar Rate floor greater than 1.00% per annum or a Base Rate floor greater than 2.00% per annum, such differential between the Eurodollar Rate or Base Rate floors shall be equated to the applicable All-In Yield for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the Eurodollar Rate or Base Rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the Eurodollar Rate or Base Rate floor (but not the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such differential between the Eurodollar Rate or Base Rate floors;
(7) (A) the maturity date of any Incremental Term Loan Facility shall not be earlier than the Latest Maturity Date of the Initial Term Loans or the then outstanding Revolving Commitments and (B) on the date of the incurrence of such Incremental Term Loans, the Weighted Average Life to Maturity of any Incremental Term Loan Facility shall not be shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loan Facility or the then outstanding Revolving Commitments;
(8) the Incremental Term Loan Facilities may 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 with other then -outstanding Classes of Term Loans;
(9) the covenants and events of default of any new Class of Incremental Term Loans under an Incremental Term Loan Facility contained in the documents governing such Indebtedness may differ from the terms of the then -existing Term Loan Facility; provided that the terms that are not substantially identical to the then -existing Term Loan Facility (other than pursuant to the foregoing clauses (1) through (8) above), (A) shall be as mutually agreed upon between the Parent Borrower and the lenders providing such Incremental Term Loan Facility and reasonably satisfactory to the Administrative Agent and (B) shall not be more restrictive to the Parent Borrower or any other Borrower in any material respect, when taken as a whole, than the terms of the then -existing Term Loan Facility unless (1) the Lenders under the then-existing Term Loan Facility also receive the benefit of such more restrictive terms pursuant to an amendment or amendments to the Loan Documents subject solely to the reasonable satisfaction of the Administrative Agent (without any consent of any other Secured Creditor being required) or (2) any such provisions apply only after the Latest Maturity Date of the Term Loans; and
(10) Incremental Term Loan Facilities shall be requested in minimum amounts of $2,500,000 or a higher multiple of $1,000,000 and (y) Incremental Revolving Increases shall be requested in minimum amounts of $1,000,000 or a higher multiple of $1,000,000.
(b) The proceeds of each Incremental Facility may be used for working capital and other general corporate purposes, including the financing of Acquisitions or other Investments and any other purpose not prohibited by this Agreement and as agreed to by the Parent Borrower and the lenders providing such Incremental Facility.
(c) The commitments in respect of any Incremental Facilities may be denominated in U.S. Dollars and/or other currencies as agreed among the Parent Borrower, the Administrative Agent and the lenders providing such Incremental Facilities. Each Incremental Borrowing Notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Credit Commitments being requested, (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall be a Business Day and shall not be less than five (5) Business Days nor more than sixty (60) days after the date of the Incremental Borrowing Notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments, if any, are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(d) Any Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and Additional Lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. Commitments in respect of Incremental Facilities shall become Commitments (or in the case of an Incremental Revolving Increase to be provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment), under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parent Borrower, any Additional Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender,; provided that the Administrative Agent, each LC Issuer and the Swing Line Lender shall have consented to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if any such consent would be required under Section 10.12(b) for an assignment of Loans or Revolving Commitments, as applicable, to such Lender or Additional Lender. Each Incremental Amendment shall specify the terms of the Incremental Term Loans or Incremental Initial Revolving Loans, as applicable, to be made thereunder, consistent with the provisions set forth in this Section 2.16. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, the an Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower, to effect the provisions of this Section 2.16, notwithstanding any requirements of Se
Appears in 1 contract
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more (x) additional 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 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 then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “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 “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 at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to 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 Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described inunless the immediately succeeding clause (y) is applicable, no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments 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, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption noticeLimited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (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 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 Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(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). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) 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 tranches or existing series of term facilities denominated in Dollars Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”).
(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and 124 AMERICAS 122173769123894352 conditions, (x) 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 shall 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 Term Revolving Loan FacilityLender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) and/or increase 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 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 all 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 assumptions, the Initial Term Loans, any Incremental Term Revolving Credit Loans or any Extended Term Loans of such Class will be held by requesting new term loan commitments to be added to existing Revolving Credit Lenders under such Loans (together Class and New Revolving Loan Lenders under such Class ratably in accordance with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit FacilityLoan”) and/or request and each loan made under an increase in any Tranche of Additional Revolving Credit Commitments Commitment (together with any New Revolving Credit Facilityeach, an “Incremental Additional Revolving Credit FacilityLoan” and, together with any Incremental Term Facility, “Incremental Facilities” andNew Revolving Credit Loans, the loans thereunder, “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 applicable Incremental Revolving Credit Commitment and all matters relating thereto.
(c) On any Increased Amount Date (x) on which any 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 an Incremental Term C Loan Commitment (each, a “Incremental Term C Loan Lender”) of any Series shall make a term letter of credit loan to the Borrower (a “Incremental Term C Loan” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, ) in an aggregate amount not in excess equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the Incremental Term C Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the sum ofIncremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans. AMERICAS 122173769123894352
Appears in 1 contract
Sources: Credit Agreement (Vistra Corp.)
Incremental Facilities. (a) The Company, Borrowers or if agreed by all of the Lenders under the applicable Incremental Facility, a any Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment of one or more new tranches of term facilities denominated in Dollars or any other currency agreed to by the applicable Borrower, the Administrative Agent and the Lenders providing such New Term Loan Facility (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans)Facility, “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum of,
Appears in 1 contract
Sources: Credit Agreement (Acuren Corp)
Incremental Facilities. (a) The Company, Borrower or if agreed by all of any other Guarantor may at any time or from time to time after the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) mayClosing Date, by written notice delivered to the Administrative Agent, Agent request the establishment of (i) one or more new tranches additional Classes of term facilities denominated loans, which may be provided in Dollars (eachDollars, a “New Term Loan Facility”) and/or increase the principal amount or in any Alternative Currency, as applicable, or additional term loans of the Initial Term Loanssame Class of any existing Class of term loans, any Incremental Term Loans or any Extended Term Loans by requesting new which may be provided in the same currency as the existing Class of term loan commitments to be added to such Loans loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), the “Incremental Term Loans”), (ii) and/or request the establishment of one or more new tranches increases in the amount of the Revolving Credit Commitments of any Class (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilityeach such increase, an “Incremental Revolving Credit Facility” 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 “Additional/Replacement Revolving Credit Commitments”, and, together with any the Incremental Term FacilityLoans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” andand the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, subject to Section 1.11, at the loans thereundertime that any such Incremental Term Loan, “Incremental Revolving Credit Loans” andCommitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), together except as set forth in the proviso to clause (b) below, no Event of Default (or, in the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition, other Investment (including any Investment in new facilities or projects) 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 11.1 or Section 11.5) shall have occurred and be continuing.
(b) Each tranche of Incremental Term Loans, “each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental FacilityRevolving Credit Commitment Increase shall be, nor will unless otherwise agreed by the Company have any obligation to approach any existing Lenders to provide any Incremental FacilityAdministrative 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 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 -124- #96562806v11
(i) 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 the 2022 Incremental 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 or the remaining 2022 Incremental 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 excess the case of currency types other than Dollars, Euros and the Alternative Currencies, to the consent of the sum ofAdministrative Agent, such consent not to be unreasonably withheld) 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 date that is twenty-four (24) months after the Closing Date, in the event that the Effective Yield for any Incremental Term Loans that are broadly marketed or syndicated floating rate term “B” loans denominated in Dollars (other than Incremental Term Loans (1) established pursuant to the proviso of Section -125- #96562806v11
Appears in 1 contract
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) 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, if it so agrees, or (ii) any other Person appointed by the Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the establishment Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (each, 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 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 tranches revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice (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 (iv) the addition of one or more new term loan facilities denominated (including one or more delayed draw term loan facilities), in Dollars each case, in such currency or currencies as the Borrower identifies in such notice (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an Term Commitment Increase or Revolving Credit Commitment Increase, the “Incremental Revolving Credit FacilityFacilities”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” andand such New Term Commitment, together with any Incremental Term Facility, “Incremental Facilities” andthe Revolving Credit Commitment Increase, the loans thereunderNew Revolving Commitments and the Term Commitment Increase, the “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental LoansNew Loan Commitments”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, ) in an aggregate amount not in excess of to exceed the sum of:
(i) the greater of (1) $300,000,000 and (2) 100.0% of LTM EBITDA, minus (ii) the amount of any Indebtedness previously incurred in reliance on this clause (w) as incremental facilities incurred pursuant to this Section 2.14, Incremental Equivalent Debt, Ratio Debt and/or Incurred Acquisition Indebtedness (and not redesignated as incurred under any other provision of the Incremental Amount in accordance with this Agreement) (the “Cash-Capped Incremental Facility”),
Appears in 1 contract
Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) Borrower may, by written notice to the Administrative Agent, elect to request the establishment of one or more new (x) additional tranches of term facilities denominated loans or increases in Dollars Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), (y) 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 $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), 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 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 and, subject to reclassification as set forth in Section 10.1, classify such Indebtedness as being incurred under clause (i) or clause (ii) 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 before or after giving effect to such New Loan Commitments, as applicable, and subject to Section 1.12, (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 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 shall, at the election of the Borrower and agreed to by Lenders providing such New 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. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement.
(b) Incremental Revolving Credit Commitments shall be subject to the satisfaction of the 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 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 Incremental Revolving Credit Commitments, (i) each 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 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 the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender.
(c) New Term Loan Commitments of any Series 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 FacilityLender”) and/or increase of any Series shall make a Loan to the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans Borrower (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit FacilityTerm Loan” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term 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 and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Tranche B 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 Tranche B-1 Term Loans or Tranche B-3 Term Loans as calculated without giving effect to any prepayments made in connection with the Tranche B-1 Term Loans or Tranche B-3 Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) above, amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that only during the period commencing on the Closing Date and ending on the thirty month anniversary of the Closing Date, if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New Term Loans consisting of Term Loans that are secured by the Collateral on a pari passu basis with the Tranche B-1 Term Loans and the Tranche B-3 Term Loans (other than any New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment) exceeds the Effective Yield for LIBOR Loans or ABR Loans in respect of the then existing Tranche B-1 Term Loans or Tranche B-3 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 Tranche B-1 Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Tranche B-1 Term Loans or Tranche B-3 Term Loans, as applicable, is equal to the Effective Yield for 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 Tranche B-1 Term Loans or Tranche B-3 Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such 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 remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date);.
(e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that no existing Lender will have an obligation notwithstanding anything to make the contrary in this Section 2.14 or otherwise:
(i) any such Incremental FacilityRevolving 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), nor will (2) repayments required upon the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess maturity date of the sum ofIncremental 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 and Section 3A.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),
Appears in 1 contract
Sources: Joinder Agreement and Amendment No. 5 (BrightSpring Health Services, Inc.)
Incremental Facilities. (a) The CompanyAt any time and from time to time, or if agreed by all of subject to the Lenders under terms and conditions set forth herein, the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) Borrower may, by written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request the establishment of to incur additional Term Loans or add one or more new additional tranches of term facilities denominated in Dollars loans (each, a the “New Other Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any additional Term Loans incurred pursuant to this Section 2.23, the “Incremental Term Loans”; each such increase or tranche, an “Incremental Facility”). Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate amount of the Incremental Facilities shall not exceed, at the time of any incurrence thereof, the sum of (i) the sum of (each such Incremental Facility and any Incremental Equivalent Debt, in each case to the extent incurred under this clause (i), “Dollar Basket Incremental Debt”) (x) the greater of $200.0 million and 100% of Consolidated EBITDA for the Relevant Reference Period calculated on a Pro Forma Basis (and giving pro forma effect to any acquisitions, investments or other transactions consummated in connection therewith) less (A) the aggregate outstanding principal amount of all Incremental Facilities and Incremental Equivalent Debt established prior to such time to the extent constituting Dollar Basket Incremental Debt and (B) the aggregate amount of Permitted Ratio Debt incurred pursuant to subclause (1) of Section 6.2(f); plus (y) in the case of Incremental Term Loans that serve to effectively extend the maturity of any Facility and/or any other Incremental Term Loans and are incurred as Dollar Basket Incremental Debt, an amount equal to the portion of the Facilities and/or Incremental Term Loans to be replaced with such Incremental Term Loans; plus (z) (1) the aggregate amount of all voluntary prepayments of any Term Loans, Incremental Term Loans and/or Incremental Equivalent Debt and replacements of Term Loans pursuant to Section 2.21 in an amount equal to the face amount of the principal amount of the Indebtedness so prepaid, (2) the amount of any voluntary prepayment, redemption or repurchase of any Permitted Credit Agreement Refinancing Indebtedness previously applied to the prepayment of any Term Loans and/or any Incremental Term Loans in an amount equal to the face amount of the principal amount of the Indebtedness being prepaid or repaid, and (3) the amount of any reduction in the outstanding principal amount of the Term Loans and/or Incremental Term Loans resulting from assignments to (and purchases by) Holdings, the Borrower or any Restricted Subsidiary in an amount equal to the face amount of such assignment; provided, further that for each of clauses (1), (2) and (3) the relevant prepayment or assignment and purchase is not funded with a concurrent incurrence of long-term funded Indebtedness (other than ABL Revolving Loans or loans under any other revolving facility), plus (ii) an additional amount (each such Incremental Facility and Incremental Equivalent Debt, in each case to the extent incurred under this clause (ii), “Ratio-Based Incremental Debt”), so long as, in the case of this clause (ii), upon the effectiveness of the relevant Incremental Facility Amendment or the relevant documentation relating to the relevant Incremental Equivalent Debt, as the case may be, (x) in the case of an Incremental Facility or Incremental Equivalent Debt that is secured by a Lien on any Collateral that is pari passu with the Liens securing the Obligations, the First Lien Net Leverage Ratio does not exceed either (A) 4.50:1.00 or (B) in the case of any Incremental Facility or Incremental Equivalent Debt incurred to finance a Permitted Acquisition or similar Investment permitted hereunder, if greater, the First Lien Net Leverage Ratio as of the Relevant Reference Period, (y) in the case of an Incremental Facility or Incremental Equivalent Debt that is secured by a Lien on any Collateral that is junior to the Liens securing the Obligations, the Secured Net Leverage Ratio does not exceed either (A) 6.00:1.00 or (B) in the case of any Incremental Facility or Incremental Equivalent Debt incurred to finance a Permitted Acquisition or similar Investment permitted hereunder, if greater, the Secured Net Leverage Ratio as of the Relevant Reference Period and (z) in the case of an Incremental Facility or Incremental Equivalent Debt that is unsecured, either (1) the Total Net Leverage Ratio does not exceed either (A) 6.00:1.00 or (B) in the case of any Incremental Facility or Incremental Equivalent Debt incurred to finance a Permitted Acquisition or similar Investment permitted hereunder, if greater, the Total Net Leverage Ratio as of the last day of the then most recently ended Relevant Reference Period or (2) the Interest Coverage Ratio is not less than either (A) 2.00:1.00 or (B) in the case of any Incremental Facility or Incremental Equivalent Debt incurred to finance a Permitted Acquisition or similar Investment permitted hereunder, if less, the Interest Coverage Ratio as of the Relevant Reference Period, in each case determined on a Pro Forma Basis (after giving effect to any Pro Forma Transaction, including any acquisition consummated with the proceeds of such Incremental Facility or Incremental Equivalent Debt); provided, that (i) solely for purposes of determining the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio and the Total Net Leverage Ratio for purposes of permitting the incurrence of such Ratio-Based Incremental Debt, the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio and the Total Net Leverage Ratio shall be determined without netting the proceeds from the incurrence of such Ratio-Based Incremental Debt (it being understood, for the avoidance of doubt, that such proceeds, to the extent constituting cash or Cash Equivalents, may be netted for subsequent determinations of the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio and the Total Net Leverage Ratio) and (ii) any Dollar Basket Incremental Debt or any borrowing under the ABL Credit Agreement incurred substantially concurrently with any Ratio-Based Incremental Debt shall not be included for purposes of determining the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio or the Total Net Leverage Ratio, as the case may be, in connection with the incurrence of such Ratio-Based Incremental Debt. Unless elected otherwise by the Borrower, any Incremental Facility and Incremental Equivalent Debt shall be deemed to have been incurred first, in reliance on clause (ii) above to the extent permitted thereby and second, in reliance on clause (i) above to the extent permitted thereby; provided that no existing Lender will have an obligation to make (x) any Incremental FacilityFacility or Incremental Equivalent Debt incurred in reliance on clause (i) may be reclassified as the Borrower elects, nor will from time to time, as incurred in reliance on clause (ii) if the Company Borrower is able to satisfy the applicable incurrence test in respect of clause (ii) at such time on a pro forma basis and (y) if the applicable ratio for the incurrence of any such Incremental Facility or Incremental Equivalent Debt would be satisfied on a pro forma basis as of the end of any fiscal quarter, the reclassification in clause (x) shall be deemed to have any obligation to approach any existing Lenders to provide any occurred automatically. All Incremental Facility, Term Loans shall be in an integral multiple of $1.0 million and in an aggregate principal amount that is not less than $10.0 million (or in excess such lesser minimum amount agreed by the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned)); provided, that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability in respect of the sum ofIncremental Facilities.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Foundation Building Materials, Inc.)
Incremental Facilities. (a) The Company, Borrower may at any time or if agreed by all of from time to time after the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) mayEffective Date, by written notice delivered to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the establishment of (i) one or more new tranches term loans which may be the same Class as any outstanding Class of term facilities denominated in Dollars Term Loans (each, a “New Term Loan FacilityIncrease”) and/or increase one or more new Classes of term loans (collectively, with any Term Loan Increase (and including the principal amount of the Initial Term Loans, any Incremental Tranche B Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New and Tranche B-1 Term Loans), the “Incremental Term Loans”), (ii) and/or request the establishment of one or more new tranches increases in the amount of the Revolving Credit Commitments of any Class (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilityeach such increase, an “Incremental Revolving Credit Facility” andCommitment Increase”) or (iii) one or more additional Classes of revolving credit commitments (the “Additional/Replacement Revolving Credit Commitments”, and together with any the Incremental Term FacilityLoans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” andand the commitments in respect thereof are referred to as the “Incremental Commitments” (including therein the Tranche B Term Loan Facility and Tranche B-1 Term Loan Facility, and the loans thereunderTranche B Term Loan Commitments and the Tranche B-1 Term Loan Commitments, “respectively)); provided that:
(i) after giving effect to the effectiveness of any Incremental Agreement referred to below, except as set forth in the proviso to clause (b) below, no Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Revolving Credit Loans” Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving effect thereto), no Event of Default shall exist; provided that, with respect to any Incremental Agreement the primary purpose of which is to finance a Permitted Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the Capital Stock of, another Person, this clause (i) may be waived or omitted by Incremental Lenders holding more than 50% of the aggregate Incremental Commitments under such Incremental Agreement (other than with respect to the absence of any Event of Default under Section 11.1 or Section 11.5, which requirement may not be waived by such Incremental Lenders); and
(ii) after giving effect to the incurrence of such Incremental Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and after giving effect to any Specified Transaction to be consummated in connection therewith), together the Borrower and the Restricted Subsidiaries would be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the incurrence of any such Incremental Facilities, calculated on a Pro Forma Basis, in each case as if such Incremental Term Loans, “Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitments, as applicable, had been outstanding (and any related transactions had occurred) on the first day of such Test Period.
(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 no existing Lender will 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 following the Effective Date, 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, of the sum of (A) the greater of $500,000,000 and an amount equal to 100% of Consolidated EBITDA for the Test Period most recently then-ended for which the Section 9.1 Financials required by Section 9.1(a) or Section 9.1(b) have actually been delivered (minus, the aggregate principal amount of all Permitted Additional Debt incurred under clause (A) of the proviso to Section 10.1(v)(ii) at any time following the Effective Date), plus (B) an obligation aggregate additional amount of Indebtedness, such that, after giving Pro Forma Effect to make such incurrence or issuance (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitments then outstanding were fully drawn (except to the extent that such Incremental Revolving Credit Commitments refinanced or replaced all or any portion of the Revolving Credit Commitments outstanding on the Effective Date))) the Borrower would be in compliance with a Consolidated Secured Debt to Consolidated EBITDA Ratio as of the Test Period most recently ended on or prior to the incurrence of any such Incremental Facility, nor will calculated on a Pro Forma Basis, as if such incurrence (and transaction) had occurred on the Company have any obligation to approach any existing Lenders to provide any Incremental Facilityfirst day of such Test Period, in an aggregate amount not in excess of that is no greater than 4.0:1.0 (the sum ofamounts under clause (A),
Appears in 1 contract
Incremental Facilities. (a) The Company, Borrower may at any time or if agreed by all of from time to time after the Lenders under Restatement Agreement Effective Date and giving effect to the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under 2024 Refinancing Term Loans and the applicable Incremental Facility, an “Additional Borrower”) mayRevolving Credit Commitments, by written notice delivered to the Administrative Agent, request the establishment of (i) one or more new tranches additional Classes of term facilities denominated in Dollars (each, a “New Term Loan Facility”) and/or increase the principal amount loans or additional term loans of the Initial Term Loans, same Class of any Incremental Term Loans or any Extended Term Loans by requesting new existing Class of term loan commitments to be added to such Loans loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), the “Incremental Term Loans”), (ii) and/or request the establishment of one or more new tranches increases in the amount of the Revolving Credit Commitments of any Class (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilityeach such increase, an “Incremental Revolving Credit FacilityCommitment Increase”) or (iii) one or more additional Classes of revolving credit commitments in U.S. Dollars or any Alternative Currency (the “Additional/Replacement Revolving Credit Commitments,” and, together with any the Incremental Term FacilityLoans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” andand the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, subject to Section 1.11, at the loans thereundertime that any such Incremental 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 proviso to clause (b) below, no Event of Default (or, in 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 or 12.5) shall 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 in minimum increments of $1,000,000 or like amount in an Alternative Currency, as applicable, in excess thereof), and, subject to the first 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 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) 5.50:1.00 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 any the Incremental Term LoansBase 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 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) if consisting of a Credit Facility, shall rank equal in right of payment and security with the Initial Term Loans and Term B-1 Loans, 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 Term B-1 Loans) and shall only be guaranteed by the Loan 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 and Term B-1 Loans, (D) shall have a maturity date (subject to clause (B) above), an amortization schedule (subject to clause (C) above), 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, (I) during the period commencing on the Restatement Agreement Effective Date and ending on the date that is six months after the Restatement Agreement Effective Date, in the event that the Effective Yield for any Incremental Term Loans denominated in U.S. Dollars (other than (x) Incremental Term Loans (1) established pursuant to the first proviso of Section 2.14(b), (2) having a final maturity date that is more than one year after the Initial Term Loan Maturity Date, (3) Incurred in connection with a Permitted Acquisition or Permitted Investment or (4) in an aggregate amount equal to or less than $145,000,000 or (y) 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) above and any such conversion or exchange is subject only to conditions customary for similar conversions or exchanges (clauses (x)(1) through (4) and (y), collectively, the “Incremental MFN Exceptions”)), is in the case of Incremental Term Loans denominated in U.S. Dollars 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% (this proviso, the “Incremental 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)(iii); provided, further, that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to Term SOFR, 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 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 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) 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 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) if consisting of a Credit Facility 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 Loan Parties on a senior basis and, (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 Issuing Lender, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable Issuing Lenders 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 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 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 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)).
(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 the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, including the currency types and denominations of the Borrower thereof. Incremental Term Loans may be made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld or delayed), by any existing Lender (it being understood that no existing Term Loan Lender will have an obligation to make a portion of any Incremental FacilityTerm Loan, nor no existing Lender with a Revolving Credit Commitment will the Company have any obligation to approach provide a portion of any Incremental Revolving Credit Commitment Increase and no existing Lenders 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, 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, each Issuing Lender and the Designated Acquisition Swingline Lender 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 14.6(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 FacilityRevolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, each applicable Issuing Lender shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 14.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) Commitments in respect of Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or in the case of an aggregate amount not Incremental Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in excess of the sum ofsuch Lende
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Incremental Facilities. (a) The Company, Borrower may from time to time on or if agreed by all of after the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) mayFourth Amendment Closing Date, by written notice to the Administrative Agent, request (i) an increase to the existing Revolving Commitments (any such increase, the “New Revolving Commitments” and any Revolving Loans thereunder, the “New Revolving Loans”) and/or (ii) an increase to an existing Class of Term Loans and/or the establishment of one or more new tranches of term facilities denominated in Dollars Term Loan Commitments hereunder (the “New Term Loan Commitments,” and collectively with any New Revolving Commitments, the “New Commitments” and each, individually, a “New Term Loan FacilityCommitment”), in any case, by an amount not in excess of the sum of (x) and/or increase from and after the Fourth Amendment Closing Date, $360,000,000 in the aggregate plus (y) the aggregate principal amount of additional New Commitments so long as, on a Pro Forma Basis (assuming, in the Initial Term Loanscase of any New Commitments, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to that the entire amount of such Loans (together with any New Revolving Commitments and New Term Loan Facility, an “Incremental Term Facility” and, Commitments were fully funded on the effective date of such increase and excluding the cash proceeds received by the Borrower in respect of any Loans made such New Commitments) and after giving effect to any Permitted Acquisitions and any Limited Conditionality Acquisition (if applicable pursuant to an Incremental Term Facility Section 1.5) consummated in connection therewith, (including 1) in the case of loans under such New Commitments secured by Liens on the Collateral that rank pari passu with the liens on the Collateral securing the Facilities (other than any New Term Loanssuch Liens that are junior), “Incremental the First Lien Net Leverage Ratio on a Pro Forma Basis does not exceed 4.00 to 1.00 and (2) in the case of loans under such New Commitments secured by Liens that rank junior to the Liens on the Collateral securing the Facilities, the Senior Secured Net Leverage Ratio on a Pro Forma Basis does not exceed 5.50 to 1.00, plus (z) the aggregate amount of all voluntary prepayments of the Term Loans outstanding on the Fourth Amendment Closing Date and Revolving Loans pursuant to Section 2.11 (and accompanied by a reduction of the Revolving Commitments pursuant to Section 2.8(b) in the case of a prepayment of Revolving Loans”) and/or made prior to such time except to the extent funded with the proceeds of Indebtedness; provided, however, that notwithstanding the foregoing, the Borrower may, at any time following the Fourth Amendment Closing Date and on or prior to the earlier of (i) June 30, 2020 and (ii) the Taurus Special Mandatory Prepayment request the establishment of one or more new tranches Term Loan Commitments hereunder (or, if the Borrower and the Administrative Agent so agree, an increase to the existing Tranche B-1 Term Loan Commitments) (such New Commitments, the “Taurus Term Loan Facility”) in an amount not to exceed $400,000,000 in the aggregate; provided that (1) the proceeds of Revolving Credit the Taurus Term Loan Facility may only be used to finance the Taurus Acquisition, (2) the Increased Amount Date with respect to the Taurus Term Loan Facility shall occur on the date of the consummation of the Taurus Acquisition and (3) any establishment and/or incurrence of the Taurus Term Loan Facility shall not decrease the maximum amount of New Commitments available under clause (x) above. Each such notice shall specify (i) 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 fifteen (15) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as may be agreed to by the Administrative Agent) and (ii) the identity of each Lender or other Person reasonably acceptable to the Administrative Agent (such other Person, a “New Revolving Credit FacilityLender” or “New Term Loan Lender,” as applicable, and collectively each a “New Lender” and together “New Lenders”) and/or request an increase in to whom the Borrower proposes any Tranche portion of Revolving Credit Commitments (together with any such New Revolving Credit FacilityCommitments or New Term Loan Commitments, an “Incremental Revolving Credit Facility” andas applicable, together with any Incremental Term Facility, “Incremental Facilities” and, be allocated and the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”)amounts of such allocations; provided that no existing the Administrative Agent (and/or its Affiliates) may elect or decline to arrange such New Revolving Commitments or New Term Loan Commitments in its sole discretion and any Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders approached to provide any Incremental Facilityall or a portion of the New Revolving Commitments or New Term Loan Commitments may elect or decline, in an aggregate amount not in excess its sole discretion, to provide a New Revolving Commitment or a New Term Loan Commitment; provided, further, that, to the extent the consent of the sum ofany party hereto is required for a proposed assignment under Section 10.4(b)(iii), such consent requirement shall apply to any New Lender under this Section 2.24 as though such New Lender were a proposed assignee under Section 10.4(b)(iii). All New Commitments shall become effective as of such Increased Amount Date; provided, that (i) no
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Sources: Credit Agreement (E.W. SCRIPPS Co)
Incremental Facilities. (a) The Company, Borrower or if agreed by all of any other Guarantor may at any time or from time to time after the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) mayClosing Date, by written notice delivered to the Administrative Agent, Agent request the establishment of (i) one or more new tranches additional Classes of term facilities denominated loans, which may be provided in Dollars (eachDollars, a “New Term Loan Facility”) and/or increase the principal amount or in any Alternative Currency, as applicable, or additional term loans of the Initial Term Loanssame Class of any existing Class of term loans, any Incremental Term Loans or any Extended Term Loans by requesting new which may be provided in the same currency as the existing Class of term loan commitments to be added to such Loans loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), the “Incremental Term Loans”), (ii) and/or request the establishment of one or more new tranches increases in the amount of the Revolving Credit Commitments of any Class (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facilityeach 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 “Additional/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”); provided that, subject to Section 1.11, at the time that any such Incremental 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 proviso to clause (b) below, no Event of Default (or, -100- in the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition, other Investment (including any Investment in new facilities or projects) 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 11.1 or Section 11.5) shall 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, ¥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 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) 4.50:1.00 or (y) 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 any the Incremental Term FacilityBase Amount, the “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental LoansLimit”); provided that no (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 Lender will 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 be secured on an obligation 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 make 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 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 date that is twenty-four (24) months after the Closing Date, in the event that the Effective Yield for any Incremental FacilityTerm Loans that are broadly marketed or syndicated floating rate term “B” loans denominated in Dollars (other than Incremental Term Loans (1) established pursuant to the proviso of Section 2.14(b), nor will (2) having a final maturity date that is more than one year after the Company have Initial Term Loan Maturity Date, (3) Incurred in connection with an Acquisition, Investment (including any obligation to approach any existing Lenders to provide any Investment in new facilities or projects) or similar transactions, (4) denominated in a currency other than Dollars, (5) Incurred under the Incremental Facility, Ratio Debt Amount or (6) in an aggregate principal amount not in excess equal to or less than the greater of (x) $110,000,000 and (y) 100.0% of Consolidated EBITDA of the sum ofBorrower 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 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 such Incremental Term Loans denominated in Dollars 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 Eurocurrency 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 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 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 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 be 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 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 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 (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 Restricted 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 o
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Incremental Facilities. (a) The Company, or if agreed by all of the Lenders under the applicable Incremental Facility, a Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, Borrower may by written notice to the Administrative Agent, Agent elect to request the establishment of one or more new (x) additional tranches of term facilities denominated loans or increases in Dollars Term Loans of any Class (eachthe commitments thereto, a the “New Term Loan FacilityCommitments”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility (including any New Term Loans), (y) increases in Revolving Credit Commitments of any Class (the “Incremental Term LoansNew Revolving Credit Commitments”), and/or (z) and/or request the establishment of one or more new additional tranches of Revolving Credit Commitments (each, a the “New Additional Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit FacilityCommitments” and, together with any Incremental Term Facility, “Incremental Facilities” andthe New Revolving Credit Commitments, the loans thereunder, “Incremental Revolving Credit Loans” and, Commitments”; together with any Incremental the New Term LoansLoan Commitments and the New Revolving Credit Commitments, the “Incremental LoansNew Loan Commitments”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Company have any obligation to approach any existing Lenders to provide any Incremental Facility, in by an aggregate amount not in excess of the sum ofMaximum Incremental Facilities Amount in the aggregate and not less than $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). 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. 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 and, subject to reclassification as set forth in
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