Incremental Facilities. (a) The Borrowers may, from time to time after the Closing Date, upon notice by the Parent Borrower to 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o

Appears in 1 contract

Sources: Credit Agreement (Maravai Lifesciences Holdings, Inc.)

Incremental Facilities. ~~(a) The Borrowers may, from time to time after the Closing Date, upon notice by the Parent Borrower to the Person appointed by the Borrower to arrange an incremental Facility (such Person (who~~ (i) ~~may be~~ After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans), the Revolving Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request the establishment of (x) one or more (A) additional tranches of term 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 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 ~~it so agrees~~applicable), together with any Incremental Equivalent Debt secured by the Collateral on a pari passu basis with the Obligations, 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 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 $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 ~~Person appointed~~ 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 ~~Parent Borrower~~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 ~~“Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof~~applicable Increased Amount Date, ~~request~~ provided that (i) ~~an increase~~ 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 ~~Commitments under~~ 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 ~~Tranche~~ 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 ~~same terms as~~Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, ~~and become part of, the Revolving Tranche proposed~~ commitment or other similar fees payable 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 revolving credit facilities to the Facilities, in each case, in such currency~~ arrangers (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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”their affiliates) in ~~an amount~~ connection therewith) shall not to exceed the sum of (x) the ~~greater of (A) $100,000,000 and (B) Consolidated EBITDA~~ Applicable Margin for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Revolving Loans made pursuant to the ~~terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien~~ Revolving Commitments that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based effect on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amountIncreased Amount Date, and (y) the ~~entire amount~~ 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 ~~increase~~ Incremental Term Loans denominated in any currency (except for any Incremental Tranche A Term Loans) is not at least one year later than the Final Term Loan Maturity Date of any Term Loans denominated in such currency, the interest rate margin in respect of such Incremental Term Loans denominated in such currency (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, ticking 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 denominated in such currency that ~~may~~ 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 denominated in such currency, which shall be ~~requested under this Section 2.14~~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 denominated in such currency shall be increased so that the interest rate margin in respect of such Incremental Term Loans denominated in such currency (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, ticking 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 denominated in such currency 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 denominated in such currency 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 ~~for purposes~~ the interest margin in respect of ~~any New Loan Commitments established pursuant to this Section 2.14 and New~~ such 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Synthetic L/C Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be ~~incurred under~~ increased by an additional 200 basis points in the ~~Ratio-Based Incremental Facility (to~~ form of an additional OID or upfront fees if reasonably necessary after increasing the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility (which, Applicable Margin for the ~~avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility,~~ Term Loans as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under set forth in this clause (Cvii), ~~and~~ and (Dviii) ~~solely for~~ the ~~purpose of calculating the Consolidated First Lien Net Leverage Ratio~~Incremental Revolving Commitments, the ~~Consolidated Senior Secured Net Leverage Ratio~~ Incremental Term Loan Commitments 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 (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, each Synthetic 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) Commitments 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facilityeffected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the 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 this ~~Section 2.14~~Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, 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. 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 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, (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 Increased Amount Date on which any Incremental Term Loan Commitments 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 Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, 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 Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the “Incremental 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 amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or ~~appropriate~~ appropriate, in the opinion of the Administrative Agent, to ~~give~~ effect ~~to such increase or new facility in accordance with its terms as set forth herein, including, for~~ the provisions of this Section 2.23. For the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans ~~and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based~~ constitute Incremental ~~Facility, the All-in Yield payable by the Borrowers applicable to such New~~ Term ~~Facility shall be determined by the Borrowers~~ Loans for all purposes of this Agreement and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other ~~such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o~~Loan Documents.

Appears in 1 contract

Sources: Credit Agreement (Avis Budget Group, Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (each, an “Incremental Credit Facility”) (such Person (who may be (i) ~~may be~~ the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the ~~Parent Borrower~~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 (iA) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (each, a “Revolving Credit Commitment Increase”), or (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”), (iiiB) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (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, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”~~; ~~and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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 of: (xi) the greater of (A) $~~100,000,000~~ 250,000,000 and (B) 100.0% of Four Quarter Consolidated EBITDA ~~for~~ minus (ii) the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ amount of any Indebtedness previously incurred in reliance on this clause (w) as Incremental Credit Facilities pursuant to Section 2.14 (and ~~after giving effect to~~ not redesignated as incurred under (1) any ~~acquisition consummated concurrently therewith on a Pro Forma Basis and all~~ other ~~appropriate pro forma adjustment events consistent~~ provision of the Incremental Amount in accordance with this Agreement, (2) Ratio Debt in the ~~definition~~ first paragraph of ~~“Consolidated EBITDA” and~~ Section ~~1.10~~7.01 or (3) any other provision of this Agreement) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o,

Appears in 1 contract

Sources: Credit Agreement (CarGurus, Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Parent Borrower may, ~~from time to time after the Closing Date, upon~~ by written notice ~~by the Parent Borrower~~ to the ~~Person appointed by the Borrower~~ Administrative Agent at any time, on one or more occasions, request 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving ~~credit~~ facilities to and/or increase the ~~Facilities, in each case, in~~ principal amount of any such ~~currency or currencies as the Parent Borrower identifies in such notice~~ tranche of incremental revolving facilities (each, a an “~~New~~ Incremental Revolving Facility” and, together with any ~~advance made by a Lender thereunder~~Incremental Term Facility, a “~~New Revolving Loan~~Incremental Facilities”; and the commitments thereof, the “New Revolving Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender loans thereunder, a “~~New Term Loan”; and the commitments thereof~~Incremental Revolving Loans” and, ~~the “New Term Commitment” and~~ together with ~~the Revolving Credit Commitment Increase~~any Incremental Term Loans, ~~the New Revolving Commitments and the Term Commitment Increase, the~~ “~~New Loan Commitments~~Incremental Loans”) in an aggregate amount not to exceed the ~~sum~~ 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 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 ~~greater~~ Dollar Equivalent of ~~(A)~~ $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”)7,500,000, (y) ~~an unlimited amount (the “Ratio-Based~~ with respect to Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of Revolving ~~Credit Loans made pursuant to Section 2.05(a) to the extent accompanied by a corresponding, permanent reduction~~ Commitments denominated in ~~the Revolving Credit Commitments pursuant to Section 2.06(a)~~dollars, in ~~each case~~minimum increments of $10,000,000, and with respect to ~~the extent not funded with the proceeds of long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the~~ Incremental Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, in minimum increments of the ~~Alternative Currency~~ Dollar Equivalent of ~~such amount,~~ $5,000,000 or (z) equal to the remaining Incremental Amount) and (yii) the ~~entire amount of any increase that may~~ date, which shall be a Business Day, on which such Incremental Term Loans are requested ~~under this Section 2.14; provided, further, that for purposes of any New Loan~~ to be made and/or Incremental Revolving Commitments ~~established~~ are requested to become effective (the “Increased Amount Date”) 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 Borrowers shall be deemed to have used the Ratio-Based an Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceedsActivation Notice. (b) ~~Any~~ Incremental Loans may be provided by any existing Lender ~~approached~~ (it being understood each existing Lender shall have no obligation to participate in any ~~New Loan Commitments may elect~~ Incremental Facility), or ~~decline, in its sole discretion, to participate in~~ by any other lender (any 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 other lender being called an “Additional Lender”); provided that the Administrative ~~Agent, each L/C Issuer~~ Agent and Issuing Bank shall have consented (~~in each case,~~ such consent not to ~~the extent the~~ be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent ~~of any of the foregoing~~ would be required ~~to assign Revolving Credit~~ under Section 10.04(b) for an assignment of Loans ~~or Term Loans, as applicable,~~ to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Additional Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) ~~If (i) a Revolving Tranche~~ The creation or ~~a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term~~ provision of any Incremental Facility or ~~New Revolving Facility is added in accordance with this Section 2.14,~~ Incremental Loan shall not require the ~~Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation~~ approval of ~~such increase, New Term~~ any existing Lender other than any existing Lender providing all or part of any Incremental Facility or ~~New Revolving Facility among the applicable Lenders. The~~ Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective DateLoan. (d) ~~With respect~~ The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to ~~any~~ 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. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans and/or Incremental Revolving ~~Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant~~ Commitments to ~~this Section 2.14,~~ be made thereunder; provided that (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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 date of any ~~New Revolving Facility,~~ Incremental Term Loan (1x) ~~other than with respect to any Extendable Bridge Loans, the final maturity~~ that is a “term loan A” shall be no earlier than the Latest Maturity ~~Date applicable (e) On the Increase Effective~~ Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment Term A Loans and (y) ifthat is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, on (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 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 ~~increase~~Incremental Term Loan, ~~there are any Revolving Credit Loans outstanding,~~ (iii) such ~~Revolving Credit Loans shall on~~ Incremental Facilities may be pari passu or ~~prior~~ subordinated in right of payment with respect to the ~~Increase Effective~~ Loans outstanding (or made on) the Vion Acquisition Closing 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 ~~prepaid from~~ unsecured (it being understood any such Indebtedness incurred in reliance on the ~~proceeds~~ Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien” for purposes of ~~Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments~~calculating the Secured Leverage Ratio set forth therein, regardless of whether secured or unsecured), ~~which~~ (iv) any 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 (other than scheduled amortization payments) of Incremental 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 with all then existing Term Loans (~~based on the relative sizes of the various outstanding Borrowings~~and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), ~~so that~~ 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 (ibut not on a greater than pro rata basis), (v) ~~Any New~~ 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) from the Effective Date, if the initial yield over the applicable base rate (such calculation for both the Incremental Facility and ~~New~~ the applicable Credit Facility, to include the upfront fees, any interest rate floors (only to the extent greater than that applicable to the Credit Facility then in effect) and any OID (as defined below) but excluding any arrangement, underwriting or similar fee paid to the Administrative Agent, the Commitment Parties under the Credit Facilities or relevant Persons under the Incremental Facility) in respect of any Incremental Term ~~Facility shall~~ Loans and/or Incremental Revolving Commitments that rank pari passu in right of payment or with respect to security with the ~~other Facilities, not be Guaranteed by any Person that is not a Borrower or Guarantor under each of~~ relevant Credit Facilities incurred on the ~~other Facilities,~~ Vion Acquisition Closing Date and ~~be unsecured or secured either~~ maturing on ~~a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same~~ (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any ~~Dollar~~“term loan B”, on or after) the maturity date of the existing applicable Credit Facility exceeds the initial yield for such existing applicable Credit Facility by more than 50 basis points (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-~~denominated~~year life to maturity), ~~floating rate New Term Facility that~~ the Applicable MarginRate for the existing applicable Credit Facility, to the extent it is pari passu in right of ~~payments and secured on a pari passu basis~~ payment or security with ~~InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based~~ such applicable Incremental Facility, ~~the All-in Yield payable by the Borrowers applicable to such New Term Facility~~ shall be ~~determined by~~ increased so that the ~~Borrowers and the Lenders providing~~ initial yield in respect of such ~~New~~ Incremental Term ~~Facility and shall not be~~ Loans and/or Incremental Revolving Commitments is no more than 75 50 basis points higher than the ~~corresponding All-in Yield payable by the Borrowers~~ initial yield for the ~~InitialTranche B Term Loans~~existing applicable Credit 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, ~~unless~~ (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 ~~All-~~Administrative Agent may, in ~~Yield~~ 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 ~~InitialTranche B Term~~ Loans ~~is increased~~ under the existing applicable Credit Facility shall be reasonably satisfactory to the ~~amount~~ Administrative Agent (except to the extent permitted by clauses (i) through (vii) above). 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 ~~so that~~ or appropriate, in the ~~difference between~~ reasonable opinion of the ~~All-in Yield with respect to such New Term Facility~~ Administrative Agent and the ~~corresponding All-~~Borrowers to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in ~~Yield~~ 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 ~~InitialTranche B Term Loans~~ date on which such Loan is ~~equal~~ made or of such effectiveness, (A) the conditions set forth in Section 4.04 shall be satisfied (it being understood that all references to ~~75 basis points~~“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 Permitted Acquisition, to the extent agreed to by the lenders providing such Incremental Facility, customary “SunGard” conditionality (including making determinations pursuant to the Permitted Acquisition Determination Method) may be implemented in lieu of the conditions set forth in this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oe).

Appears in 1 contract

Sources: Credit Agreement (Darling Ingredients Inc.)

Incremental Facilities. (a) ~~The Borrowers may,~~ At any time during the period from ~~time to time~~ and after the Closing Date, ~~upon notice by~~ at the ~~Parent Borrower~~ option of Borrowers (but subject to the ~~Person appointed~~ conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the ~~Borrower~~ aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to ~~arrange~~ exceed (1) the Available Increase Amount, plus (2) solely after the use of the amount set forth in clause (1), an ~~incremental Facility~~ amount equal to Suppressed Availability determined as of the date of such increase (each such ~~Person~~ increase, an “Increase”). Agent (~~who~~ at the direction of the Borrowers) shall invite one or more Lenders to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) or any prospective Lender who, unless such prospective Lender is an Affiliate of an existing Lender, is reasonably satisfactory to Agent in its Permitted Discretion and Borrowers, to become a Lender in connection with a proposed Increase. Any Increase pursuant to this Section 2.14 shall be in an amount of at least $10,000,000 and integral multiples of $5,000,000 in excess thereof (or such lesser amount as is required to use the remaining amount of possible increases pursuant to this Section 2.14). In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than four occasions in the aggregate for all such Increases. Additionally, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolver Commitments after the Closing Date pursuant to this Section 2.14 exceed $800,000,000. (b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount in connection therewith (i) ~~may be~~ Agent or Borrowers have obtained the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 commitment of one or more ~~new revolving credit facilities~~ Lenders (or other prospective lenders) in accordance with the above clause (a) to provide the applicable Increase and any such Lenders (or prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), in form and substance reasonably satisfactory to Agent in its Permitted Discretion, to which such Lenders (or prospective lenders), Borrowers, and Agent are party and (ii) no Event of Default (or, in respect of a Limited Condition Transaction, no Event of Default under Sections 7.1, 7.4 or 7.5) shall have occurred and be continuing on the date of such Increase, nor shall either result from the effectiveness of such Increase on the date of such Increase, (c) The interest rate margins with respect to the ~~Facilities, in each case, in such currency or currencies~~ Revolving Loans to be made pursuant to the increased Revolver Commitments shall be the same as the ~~Parent Borrower identifies in such notice (each, a “New~~ interest rate margin applicable to Revolving ~~Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”; and~~ Loans hereunder immediately prior to the ~~commitments thereof,~~ date of the ~~“New Revolving Commitment”) and (iv)~~ effectiveness of the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving increased Revolver Commitments and the Term Commitment Increase, the “New Loan Commitments”) in an amount not to exceed the sum of (x) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “~~Cash-Capped Incremental Facility~~Increase Date”). Any Increase Joinder may, (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the ~~Term~~ consent of Agent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary to effectuate the provisions of this Section 2.14. (d) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Loans ~~and (B) all repurchases of (1) Term~~ shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the ~~terms hereof~~ increased Revolver Commitments and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of Revolving Credit Loans made Maximum Revolver Amount pursuant to this Section ~~2.05(a~~2.14. (e) Each of the Lenders having a Revolver Commitment prior to the ~~extent accompanied by~~ Increase Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a ~~corresponding~~new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), ~~permanent reduction~~ and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in Letters of Credit Commitments pursuant to Section 2.06(a), in each case, to the extent not funded with the proceeds of long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any on such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase Increase Date as shall be necessary in ~~a minimum amount~~ order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of ~~the lesser of~~ Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments. (xf) ~~$5,000,000 or~~The Revolving Loans, ~~in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount~~Revolver Commitments, 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~~ Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and ~~New Incremental Notes issued pursuant to Section 2.15: (A) the Borrowers~~ Maximum Revolver Amount under, and shall be ~~deemed~~ entitled to ~~have used amounts under~~ all the Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14benefits afforded by, this Agreement and the other Loan ~~Documents may be amended in a writing (which may be executed~~ Documents, and ~~delivered~~ shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the ~~Incremental Arranger (~~Liens and security interests granted by the ~~Lenders hereby authorize~~ Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such ~~Incremental Arranger to execute~~ new Revolver Commitments and ~~deliver any such documentation)~~Maximum Revolver Amount. (g) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option As of the ~~Parent Borrower, with respect to~~ effective date of any increase in the ~~Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with~~ Revolver Commitments and the ~~New Term Facility to achieve fungibility with such existing Term Facility. As of~~ Maximum Revolver Amount occurring after the ~~Increase Effective~~ Closing Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal each reference to the ~~additional Loans under such Term Loan Tranche being made on such date~~term “Availability” herein, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility other Loan Document shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary deemed amended so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) ~~is in an aggregate principal amount (together with any other~~ the ratio of the Availability and the Maximum Revolver Amount as so increased remains the same as prior to such ~~New Term Facility) equal to or less than $100,000,000~~increase, and (B) ~~has a final maturity later than one year after~~ the ~~Latest Maturity Date~~ reference to dollar amounts in the definition of Borrowing Base (as such amounts may be adjusted from time to time in accordance with this Section 2.14(g)) shall be adjusted to bear the ~~then o~~same relationship to the Maximum Revolver Amount as increased as each had borne to the Maximum Revolver Amount prior to such increase.

Appears in 1 contract

Sources: Asset Based Revolving Credit Agreement (Par Pacific Holdings, Inc.)

Incremental Facilities. (a) The Borrowers ~~may~~may (on a joint and several basis), from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower Representative to the ~~Person~~ Administrative Agent (who shall promptly notify the applicable LendersPerson 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 ~~Parent Borrower~~Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed amount ~~thereof~~ and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 revolving credit facilities to the ~~Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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, in each case,~~ facilities in such currency or currencies as the ~~Parent Borrower identifies~~ 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”) in by an amount not to exceed the sum of (x) ~~the greater~~ a Dollar Amount of ~~(A)~~ $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) 600,000,000375,000,000 (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum First Lien Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to ~~(i)(A)~~ all voluntary prepayments of ~~(1)~~ Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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~~ long-term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such ~~sum~~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 $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ 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~~ issuedEquivalent Debt incurred pursuant to Section 2.15: , (A) the Borrowers shall be deemed to have used amounts under ~~the Prepayment-Based Incremental Facility~~clause (z), if any, prior to utilization of ~~the Cash-Capped Incremental Facility~~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 (to the extent compliant therewith~~Facility) prior to utilization of ~~the Cash-Capped Incremental Facility~~ amounts under clause (x), and ~~the Prepayment-Based Incremental Facility,~~ (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental ~~Notes~~ NotesEquivalent Debt pursuant to Section 2.15 may be incurred under ~~the Ratio-Based Incremental Facility~~ both clauses (~~to the extent compliant therewith), the Cash-Capped Incremental Facility~~ x) and ~~the Prepayment-Based Incremental Facility~~(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 incurrence under ~~the Ratio- Based Incremental Facility~~ clause (~~without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility~~y) and then calculating the incurrence under clause (x)). At the ~~Prepayment-Based Incremental Facility~~ time of sending such notice to the applicable Lenders, the Borrower Representative (~~without~~ 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 ~~substantially concurrently~~ utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (Cx) or (z), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds). (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 ~~participate~~ provideparticipate in 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, 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 (~~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~~ consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed) to become Lenders pursuant to a joinder agreement to this ~~Agreement~~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 ~~Borrowers~~ Borrower must provide to the Administrative Agent ~~(x)~~ the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestCommitments. (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 ~~Incremental~~ 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 ~~Incremental~~ Administrative AgentIncremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for~~ herein pursuant to the ~~avoidance of doubt, at the option of the Parent Borrower, with respect~~ documentation related to ~~any increase in the Applicable Rate relating to any existing Term Facility to bring~~ such ~~Applicable Rate in line with the~~ New Term Facility ~~to achieve fungibility with such existing Term~~ 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 ~~Incremental~~ 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 equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist after giving effect to such increase; , (ii) ) (A) in the case of any increase of the Revolving Tranche, (1) the 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) ~~other than with respect to any Extendable Bridge Loans,~~ the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase applicable to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment Facility and (y2) ~~if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on~~ no amortization or mandatory commitment reduction prior to the ~~Increase Effective~~ Maturity Date ~~be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ applicable to 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 Facility 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~~required, ~~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~~C) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any 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 ~~junior secured~~ 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 ~~Revolving Facility~~ 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 ~~Revolving~~ Term Facility or 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 ~~subject~~ no shorter than that of any existing Term Loan Tranche, (iii) except with respect to ~~intercreditor arrangements that are~~ 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 ~~and, if~~ in the documentation relating to such ~~Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the~~ New Term Facility or New Revolving Facility, ~~as applicable, shall, for purposes of prepayments, be treated substantially~~ any such New Term Facility or New Revolving Facility shall have the same terms as ~~(and in any event no more favorably than)~~ the Term Facility or Revolving Credit Facility, as respectivelyterms reasonably satisfactory to the ~~case~~ 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, ~~unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans,~~ as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers ~~and~~ in consultation with the Administrative Agent, incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders ~~providing~~ (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 ~~and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield~~ to achieve fungibility with ~~respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to~~ such ~~New~~ existing Term Facility and (y) otherwise, may be incorporated if reasonably satisfactory to the ~~corresponding All-in Yield on~~ Borrower, the ~~InitialTranche B Term Loans is equal~~ Incremental Arranger and the Administrative Agent, and (iv) to ~~75 basis points; provided that this clause (iii)~~ the extent reasonably requested by the Administrative Agent, the Administrative AgentIncremental Arranger, the Incremental Arranger shall ~~not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000~~have received legal opinions, ~~(B) has a final maturity later than one year after the Latest Maturity Date of the then o~~resolutions, officers’ certificates and/or reaffirmation

Appears in 1 contract

Sources: Second Amendment (Ortho Clinical Diagnostics Holdings PLC)

Incremental Facilities. (a) The Borrowers may, from time to time after the Closing Date, upon notice by the ~~Parent Borrower~~ Borrowers to the Administrative Agent and the Person appointed by the ~~Borrower~~ Borrowers to arrange an incremental ~~Facility~~ facility (such Person (who may be (i) ~~may be~~ the Administrative Agent, if it so agrees, or (ii) any other Person that is an unaffiliated third party appointed by the ~~Parent Borrower),~~ Borrowers the “Incremental Arranger”) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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~~ clauses (c) and (d) below or, subject to the terms of clause (f)(iii) below, with respect to ~~amortization~~any fees or original issue discount payable to the lenders providing such increase)) (each, a “Term Commitment Increase”), (iii) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (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 (ivii) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the ~~Parent Borrower identifies~~ Borrowers identify in such notice (provided that the Administrative Agent has consented to such currencies (such consent to not be unreasonably withheld)) (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~~ and, together with ~~the Revolving Credit Commitment Increase, the New Revolving Commitments and~~ the Term Commitment Increase, the “New Loan Commitments”) in by an amount not to exceed the sum of (x) ~~the greater of (A)~~ $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) 0 (the “~~Cash-Capped Incremental Facility~~Free and Clear Amount”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to (~~i)(A~~i) all voluntary prepayments of ~~(1)~~ Term Loans made pursuant to Section 2.05(a) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B~~ii) all voluntary repurchases of ~~(1)~~ Term Loans made pursuant to the terms hereof ~~and (2) New Incremental Notes that are secured on a pari passu basis with~~ in an amount equal to the principal amount of the Term ~~Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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)~~repurchased, in each case, solely to the extent not funded with the proceeds of long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) a Dollar Amount equal to $~~5,000,000 or,~~ 10,000,000 (in the case of ~~any~~ Term Commitment Increases or New ~~Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ Term Facilities) 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~~ Equivalent Debt incurred pursuant to Section 2.15: , (A) unless the Borrowers elect otherwise, 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 Borrowers shall be deemed to have used the~~ Ratio-Based Incremental Facility (to the extent ~~compliant therewith~~permitted by the pro forma calculation of the applicable ratio) prior to utilization of ~~the Cash-Capped Incremental Facility and~~ the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental ~~Facility (to the extent compliant therewith)~~Facility, ~~the Cash-Capped Incremental Facility and~~ and/or the Prepayment-Based Incremental ~~Facility,~~ Facility and proceeds from any such incurrence under the Ratio-Based Incremental Facility, and/or the Prepayment-Based Incremental Facility may be utilized in a single transaction by first calculating the incurrence under the ~~Ratio-~~ Ratio-Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ utilized ~~pursuant to the Cash-Capped Incremental Facility or~~ under the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental ~~Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental~~ Facility, (CC)(i) ~~the Borrowers may redesignate~~ all or any portion of Indebtedness originally designated as incurred under the ~~Cash~~Prepayment-~~Capped~~ Based Incremental Facility or shall automatically cease to be deemed incurred under the Prepayment-Based Incremental Facility ~~as having been~~ and shall instead be deemed incurred under the Ratio-Based Incremental Facility ~~so long as, at~~ from and after the ~~time of such redesignation,~~ first date on which the Borrowers would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such 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 or the~~ Prepayment-Based Incremental Facility, as applicable, by the ~~amount~~ Dollar Amount of such redesignated Indebtedness~~); provided~~) and (ii) the Swedish Borrower may otherwise classify, ~~that such~~ and may later reclassify, all or any portion of Indebtedness ~~shall be automatically redesignated~~ as incurred as a Prepayment-Based Incremental Facility or Ratio-Based Incremental Facility on the date of incurrence and thereafter to the extent ~~that, at~~ otherwise permitted on the ~~end~~ date of such classification (or the date of any ~~fiscal quarter,~~ such ~~redesignation would be permitted under this clause (C~~reclassification), and (D) ~~solely for~~ in the ~~purpose~~ case of ~~calculating the Consolidated First Lien Net Leverage Ratio~~any New Loan Commitments established pursuant to this Section 2.14, the ~~Consolidated Senior Secured Net Leverage Ratio or~~ lenders providing such New Loan Commitments shall be selected in accordance with Section 2.14(b); provided, further, that the ~~Consolidated Total Net Leverage Ratio~~ Free and Clear Amount shall be reduced to ~~determine~~ zero at all times after the ~~availability~~ date falling 120 days after the Closing Date. The Swedish Borrower may designate any Incremental Arranger of any New Loan Commitments with such titles under the ~~Ratio-Based Incremental Facility at~~ New Loan Commitments as the ~~time of incurrence, any cash proceeds~~Borrowers may deem appropriate. AMERICAS 126348241 (b) The Borrowers and any Incremental Arranger shall first seek New Loan Commitments from the existing Lenders, by written request to the existing Lenders (each such request, an “Incremental Request”). 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~~ If the existing Lenders decline to provide the full amount of such New Loan Commitment or fail to respond to the Borrowers ~~may also invite additional Eligible Assignees reasonably satisfactory to~~ or the Incremental Arranger, as applicable, within ten (10) Business Days of the applicable Incremental Request, the Borrowers and the Incremental Arranger ~~and~~may then seek New Loan Commitments on the same terms from other Persons, ~~solely in connection with~~ and any Person that the Borrowers or the Increment Arranger propose to provide New Loan Commitments, if such Person is not then a ~~Revolving Credit Commitment Increase or New Revolving Facility~~Lender, ~~with~~ must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent (but only to the extent that the consent of the Administrative ~~Agent, each L/C Issuer (in each case, to the extent the consent of any of the foregoing~~ Agent would be required Section 10.07(b) for an assignment to ~~assign Revolving Credit Loans or Term Loans, as applicable, to~~ any such additional Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request). (c) If (i) ~~a Revolving Tranche or~~ a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term 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~~ and, subject to Section 2.14(b), the final allocation of such ~~increase,~~ increase or New Term ~~Facility or New Revolving~~ Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility ~~or New Revolving Facility~~ and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or ~~Revolving Tranche or~~ (ii) any addition of a New Term ~~Facility or New Revolving~~ Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or ~~New Revolving Facility or~~ to effectuate the increases to the Term Loan Tranche ~~or Revolving Tranche~~ and to reflect any technical changes ~~necessary~~ necessary, advisable or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for~~ herein pursuant to the ~~avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate~~ documentation relating to ~~any existing~~ such New Term ~~Facility to bring such Applicable Rate in line with the~~ Facility. Any Term Commitment Increase or New Term Facility ~~to achieve fungibility with such existing Term Facility~~shall be documented under this 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 writing (which may be executed and delivered by the ~~Borrowers~~ Borrowers, the Administrative Agent and the Incremental Arranger (and the Lenders hereby authorize the Administrative Agent and any such Incremental Arranger to execute and deliver any such documentation)) to (x) add any call protection applicable to any existing Term Loan Tranche being increased and/or (y) 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; provided that in no event shall the amount of amortization paid in respect of the Term Loan Tranche outstanding prior to the Increase Effective Date be reduced. (d) With respect to any ~~Revolving Credit Commitment Increase,~~ Term Commitment Increase or addition of New Term ~~Facility or New Revolving~~ Facility pursuant to this Section 2.14, (i) no Event of Default ~~(subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would~~ shall exist immediately after giving effect to such increase; (ii) ) (A) in the case of any increase of ~~the Revolving~~ a Term Loan Tranche, ~~(1)~~ 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 unless the Term Lenders are also offered by the Borrowers the same as amortization amounts for the corresponding year (provided that each Term Lender will be deemed to have accepted such offer unless such Term Lender notifies the Administrative Agent that it has rejected such offer by 11 a.m. five (5) Business Days (or such longer period which the Swedish Borrower agrees) after the date of such offer; provided, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date ~~applicable~~ of all then outstanding Term Loans and with respect to Extendable Bridge Loans, the ~~Revolving Credit Facility, (2) no amortization or mandatory commitment reduction prior~~ Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity ~~Date applicable to the Revolving Credit Facility shall be required~~ of any then outstanding Term Loans and ~~(3) the terms and documentation applicable to the Revolving Credit Facility shall apply,~~ (B) in the case of any New ~~Revolving~~ Term Facility, ~~(1)~~ other than ~~with respect to any~~ in the case of Extendable Bridge Loans, ~~the~~ such New Term Facility shall have a final maturity ~~shall be~~ 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 unless the Term Lenders are also offered by the Borrowers the same amortization amounts for the corresponding year (provided that each Term Lender will be deemed to have accepted such offer unless such Term Lender notifies the Administrative Agent that it has rejected such offer by 11 a.m. five (5) Business Days (or such longer period which the Swedish Borrower agrees) after the date of such offer; provided that, other than in the case of Extendable Bridge Loans, in no event shall any AMERICAS 126348241 New Term Facility at the time of establishment thereof mature prior to the Maturity Date, (iii) after giving Pro Forma Effect to such Incremental Amount, the Maximum Incremental Amount Condition shall be satisfied and (iv) except as set forth in clause (f)(iii) below with respect to All-In Yield and with respect to final maturity and Weighted Average Life to Maturity, any such New Term Facility shall have the same terms as any Term Facility; provided, that notwithstanding the foregoing, such terms may differ from the terms of any Term Facility so long as agreed between the Borrowers and the lenders providing such New Term Facility and so long as such different terms (w) to the extent more favorable to the existing Lenders than comparable terms existing in the Loan Documents, as reasonably determined by the Swedish Borrower in consultation with the Administrative Agent, are 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 Lender consent requirements, including, for the avoidance of doubt, at the option of the Swedish Borrower, any increase in the Applicable Rate or the amount of any amortization payments relating to any existing Term Facility to bring such Applicable Rate or amortization payment in line with the New Term Facility to achieve fungibility with such existing Term Facility, (x) are applicable only to periods after the Latest Maturity Date of the Term Facilities existing at the time of the incurrence of such indebtedness or (y) are reasonably satisfactory to the Borrowers, the Administrative Agent and the Required Lenders, provided that to the extent that any Incremental Facility has the benefit of a financial covenant that is tested prior to the Latest Maturity Date of the Term Facilities existing at the time of the incurrence of such indebtedness, such financial covenant shall be incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders without further Lender consent requirements. Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be solely those agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrowers. Notwithstanding the foregoing, loans in respect of any Term Commitment Increase or New Term Commitment that are secured on a pari passu basis with the Initial Term Loans shall be incurred via a joinder to this Agreement, and shall feature the exact same terms as are applicable to the Initial Term Loans, subject to Section 2.14(f) below. (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so ~~that~~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~~ Term Facilities, not be Guaranteed by any Person that is not a Borrower or Guarantor under ~~each of~~ the ~~other~~ Term Facilities, and be ~~unsecured or~~ secured ~~either~~ on a ~~pari passu~~ first lien “equal and ratable” basis with the ~~other~~ Term Facilities ~~or on a “junior” basis to the other Facilities, in each case~~ over the same (or less) Collateral that secures the ~~Facilities (and in the case of any such junior secured New Revolving Facility or New~~ Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent)Facilities, (ii) ~~the~~ any New Term Facility ~~or New Revolving Facility, as applicable,~~ shall, for purposes of prepayments, be treated ~~substantially~~ exactly the same as (and in any event no more favorably than) ), and shall, subject to this Section 2.14(f), be on the exact same terms as, any Term Facility ~~or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable),~~ and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the ~~Borrowers~~ Swedish Borrower and the Lenders providing such New Term ~~Facility~~ Facility, and shall not be more than 75 50 basis points higher than the corresponding All-in Yield payable by the Borrowers for the ~~InitialTranche B~~ applicable Tranche(s) of existing Term Loans, unless the All-in Yield with respect to ~~the InitialTranche B~~ such applicable Tranche(s) of such then-existing Term Loans is are increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term ~~Facility~~ Facility, and the corresponding All-in Yield on ~~the InitialTranche B~~ such applicable Tranche(s) of such then existing Term Loans is equal to 75 50 basis ~~points;~~ points (provided ~~that this clause (iii) shall not apply~~ that, to ~~any New Term Facility that (A)~~ the extent such increase in All-in Yield is ~~in an aggregate principal amount (together~~ the result of a higher SOFR or Base Rate floor with ~~any other~~ respect to such New Term Facility, as applicable, the increase in All-in Yield for the applicable Tranche of such then existing Term Loans shall be effected solely through an increase in such “floor” (or an implementation thereof, as applicable) ~~equal~~ in respect of such applicable Tranche(s) of such then existing Term Loans to ~~or less than $100,000,000, (B) has a final maturity later than one year after~~ the ~~Latest Maturity Date~~ extent of the ~~then o~~All-in Yield differential). (g) The Lenders hereby authorize the Administrative Agent and the Incremental Arranger (and the Lenders hereby authorize the Administrative Agent and the Incremental Arranger to execute and deliver such amendments) to enter into amendments to this Agreement and the other Loan Documen

Appears in 1 contract

Sources: Credit Agreement (Oatly Group AB)

Incremental Facilities. (a) The ~~Borrowers may,~~ Borrower may from time to time on or after the Closing Date, ~~upon~~ by written notice ~~by the Parent Borrower~~ to ~~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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof~~, request (i) an increase in to the existing 2026 Extended Revolving Credit Commitments ~~under~~ (any such increase, the “New Revolving Commitments” and any Revolving ~~Tranche (which shall be on the same terms as, and become part of~~Loans thereunder, the “New Revolving ~~Tranche proposed to be increased~~Loans”) ~~(a “Revolving Credit Commitment Increase”),~~ and/or (ii) an increase ~~in any~~ to an existing Class of Term ~~Loan Tranche then outstanding (which shall be on~~ Loans and/or 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 establishment of one or more ~~new revolving credit facilities to~~ Term Loan Commitments hereunder (the ~~Facilities~~“New Term Loan Commitments,” and collectively with any New Revolving Commitments, ~~in each case~~the “New Commitments” and each, ~~in such currency or currencies as the Parent Borrower identifies in such notice (each~~individually, 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~~), in ~~each~~ any 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~~ in excess of the sum of (x) the ~~greater~~ Incremental Starter Basket plus (y) the aggregate principal amount of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (and after giving effect to any acquisition consummated concurrently therewith additional New Commitments so long as, on a Pro Forma Basis ~~and all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.10)~~ (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 orassuming, in the case of any New ~~Loan Commitments denominated in an Alternative Currency~~Commitments, ~~the Alternative Currency Equivalent of such amount, and (y)~~ that the entire amount of ~~any~~ such New Revolving Commitments and New Term Loan Commitments were fully funded on the effective date of such increase ~~that may be requested under this Section 2.14; provided, further, that for purposes~~ and excluding the cash proceeds received by the Borrower in respect of any such New ~~Loan Commitments established pursuant~~ Commitments) and after giving effect 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant any Permitted Acquisitions consummated in connection therewith~~) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility~~, (B1) in the case of loans under such New ~~Loan~~ Commitments ~~pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under~~ secured by Liens on the ~~Ratio-Based Incremental Facility~~ Collateral that rank pari passu with the liens on the Collateral securing the Facilities (~~to the extent compliant therewith~~other than any such Liens that are junior), the ~~Cash-Capped Incremental Facility~~ First Lien GrossNet Leverage Ratio on a Pro Forma Basis does not exceed 2.002.50 to 1.00 and (2) in the ~~Prepayment-Based Incremental Facility, and proceeds from any~~ case of loans under such ~~incurrence may be utilized in a single transaction~~ New Commitments secured by ~~first calculating the incurrence under the Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant~~ Liens that rank junior to the ~~Cash-Capped Incremental Facility or~~ Liens on the ~~Prepayment-Based Incremental Facility) and then calculating~~ Collateral securing the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignationFacilities, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio ~~or the Consolidated Total Net Leverage Ratio~~ on a Pro Forma Basis does not exceed 4.505.00 to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments 1.00 and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A3) in the case of ~~any increase~~ loans under such New Commitments that are unsecured, the Total Net Leverage Ratio on a Pro Forma Basis does not exceed 5.005.50 to 1.00, plus (z) the aggregate amount of all voluntary prepayments 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Term Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o

Appears in 1 contract

Sources: Credit Agreement (E.W. SCRIPPS Co)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower Representative may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower Representative to the Administrative Agent and the Person appointed by the Borrower Representative to arrange an incremental Facility (such Person (who may be (i) ~~may be~~ the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the ~~Parent Borrower~~Borrower Representative), the “Incremental Arranger”) specifying the proposed Borrower (which may be one or more Initial Borrowers or Co-Borrowers), the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 for any fees and original issue discount and as otherwise provided in clause (d) below with respect to ~~amortization~~amortization and terms that will be incorporated in this Agreement for the benefit of the applicable Term Loan Tranche)) (each, a “Term Commitment Increase”), (iii) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower Representative 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,~~ facilities (which may be in ~~each case, in such currency or currencies as~~ the ~~Parent Borrower identifies in such notice~~ form of delayed draw term commitments) (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 (xv) (i) the greater of (A) $~~100,000,000~~ 460,000,000 and (B) 100.0% of Four Quarter Consolidated ~~EBITDA for~~ EBITDA, minus (ii) the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ amount of any Indebtedness previously incurred in reliance on this clause (v) (and ~~after giving effect to~~ not redesignated as incurred under any ~~acquisition consummated concurrently therewith on a Pro Forma Basis and all~~ other ~~appropriate pro forma adjustment events consistent~~ provision of the Incremental Amount in accordance with ~~the definition of “Consolidated EBITDA” and Section 1.10~~this Agreement) (the “Cash-Capped Incremental Facility”), (yw) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is ~~satisfied and~~ satisfied, (zx) an amount equal to (~~i)(A~~i) (A) all voluntary prepayments of any long-term Indebtedness that is (1) ~~Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are~~ secured by a Lien on the Collateral on a pari passu basis with the Initial Term Loans and the Initial Revolving Tranche (~~B) all repurchases~~ including, for the avoidance of ~~(1)~~ doubt, any New Term Loans ~~made pursuant to the terms hereof and (2) New Incremental Notes~~ that are secured by a Lien on the Collateral on a pari passu basis with the Initial Term ~~Loans,~~ Loans and the Initial Revolving Tranche) (~~ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of Revolving Credit Loans~~ including any payments made pursuant to Section 2.05(a) or Section 3.08(a)), (2) secured by a Lien on the Collateral on a junior basis with the Initial Term Loans and the Initial Revolving Tranche or (3) any other Indebtedness; provided that, with respect to long-term Indebtedness described in clause (2), such New Loan Commitment shall only be in the form of Indebtedness secured by a Lien on the Collateral on a junior basis with the Initial Term Loans and the Initial Revolving Tranche or unsecured Indebtedness, or with respect to long-term Indebtedness described in clause (3), any such New Loan Commitment shall only be in the form of Indebtedness secured solely by assets not constituting Collateral or unsecured Indebtedness, in each case, except to the extent initially incurred in reliance on (or re-classified to) the Cash-Capped Incremental Facility, in which case such New Loan Commitment may be in the form of Indebtedness that is secured by a Lien on the Collateral on a pari passu basis or junior basis with the Initial Term Loans and the Initial Revolving Tranche or unsecured Indebtedness, and (B) all repurchases and/or cancellations (including purchases at or below par and payments through Dutch auction procedures, which shall be credited at the amount of debt so retired, if acquired below par) of any long-term Indebtedness that is (1) secured by a Lien on the Collateral on a pari passu basis with the Initial Term Loans and the Initial Revolving Tranche (including, for the avoidance of doubt, any New Term Loans that are secured by a Lien on the Collateral on a pari passu basis with the Initial Term Loans and the Initial Revolving Tranche), (2) secured by a Lien on the Collateral on a junior basis with the Initial Term Loans and the Initial Revolving Tranche or (3) secured solely by assets not constituting Collateral or unsecured, in an amount equal to the actual amount of cash utilized for such repurchase; provided that, with respect to long-term Indebtedness described in clause (2), any such New Loan Commitment shall only be in the form of Indebtedness secured by a Lien on the Collateral on a junior basis with the Initial Term Loans and the Initial Revolving Tranche or unsecured Indebtedness, or with respect to long-term Indebtedness described in clause (3), any such New Loan Commitment shall only be in the form of Indebtedness secured solely by assets not constituting Collateral or unsecured Indebtedness, in each case, except to the extent initially incurred in reliance on (or re-classified to) the Cash-Capped Incremental Facility, in which case such New Loan Commitment may be in the form of Indebtedness that is secured by a Lien on the Collateral on a pari passu basis or junior basis with the Initial Term Loans and the Initial Revolving Tranche or unsecured Indebtedness, and (ii) (A) all voluntary prepayments of any revolving credit loans that are (1) secured by a Lien on the Collateral on a pari passu basis with the Initial Term Loans and the Initial Revolving Tranche (including any payments made pursuant to Section 2.05(a) or Section 3.08(a)), (2) secured by a Lien on the Collateral on a junior basis with the Initial Term Loans and the Initial Revolving Tranche or (3) secured solely by assets not constituting Collateral or unsecured, and to the extent accompanied by a corresponding, permanent reduction in the applicable revolving credit commitment; provided that, with respect to any revolving credit loans described in clause (2), any such New Loan Commitment shall only be in the form of Indebtedness secured by a Lien on the Collateral on a junior basis with the Initial Term Loans and the Initial Revolving ~~Credit Commitments pursuant~~ Tranche, or with respect to ~~Section 2.06(a~~any revolving credit loans described in clause (3), any such New Loan Commitment shall only be in the form of Indebtedness secured solely by assets not constituting Collateral or unsecured Indebtedness, in each case, except to the extent initially incurred in reliance on (or re-classified to) the Cash-Capped Incremental Facility, in which case such New Loan Commitment may be in the form of Indebtedness that is secured by a Lien on the Collateral on a pari passu basis or junior basis with the Initial Term Loans and the Initial Revolving Tranche or unsecured Indebtedness and (B) all repurchases and/or cancellations of any revolving credit loans that are (1) secured by a Lien on the Collateral on a pari passu basis with the Initial Term Loans and the Initial Revolving Tranche, (2) secured by a Lien on the Collateral on a junior basis with the Initial Term Loans and the Initial Revolving Tranche or (3) secured solely by assets not constituting Collateral or unsecured, to the extent accompanied by a corresponding, permanent reduction in the applicable revolving credit commitment; provided that, with respect to revolving credit loans described in clause (2), any such New Loan Commitment shall only be in the form of Indebtedness secured by a Lien on the Collateral on a junior basis with the Initial Term Loans and the Initial Revolving Tranche, or with respect to revolving credit loans described in clause (3), any such New Loan Commitment shall only be in the form of Indebtedness secured solely by assets not constituting Collateral or unsecured Indebtedness, in each case, in an amount equal to the actual amount of cash utilized for such repurchase, in each case under this clause (x), to the extent not funded with the proceeds of ~~long~~ long-term Indebtedness (~~excluding~~it being agreed and understood, for the avoidance of doubt, ~~proceeds of~~ that (I) Indebtedness incurred pursuant to any revolving credit facility (including the Revolving Credit Facility)) and ~~in the case of any~~ (II) intercompany Indebtedness shall not constitute long-term Indebtedness for such ~~prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ purpose) (the “Prepayment-Based Incremental Facility”), (y) in the case of any New Revolving Facility or New Term Facility that effectively extends the maturity date (without increasing or elevating the priority of the liens securing such Indebtedness) of any First Lien Specified Debt, Junior Lien Specified Debt or Other Specified Debt, an amount equal to the portion of such First Lien Specified Debt, Junior Lien Specified Debt or Other Specified Debt that will be replaced by such New Revolving Facility or New Term Facility; provided that any such New Revolving Facility or New Term Facility so effectively extending the maturity date of any Indebtedness secured by a Lien on the Collateral on a junior basis with the Initial Term Loans and the Initial Revolving Tranche shall only be in the form of Indebtedness secured by a Lien on the Collateral on a junior basis with the Initial Term Loans and the Initial Revolving Tranche or unsecured Indebtedness, and any New Revolving Facility or New Term Facility so effectively extending the maturity date of, or refinancing, any Indebtedness secured solely by assets not constituting Collateral or unsecured Indebtedness shall only be in the form of Indebtedness secured solely by assets not constituting Collateral or unsecured Indebtedness, in each case except to the extent initially incurred in reliance on (or re-classified to) the Cash-Capped Incremental Facility, in which case such New Revolving Facility or New Term Facility may be in the form of Indebtedness that is secured by a Lien on the Collateral on a pari passu basis or junior basis with the Initial Term Loans and the Initial Revolving Tranche or unsecured Indebtedness (the “Effective Extension Incremental Facility”), and (z) amounts reallocated, at the Borrowers’ option, from the Indebtedness permitted to be incurred in reliance on the General Debt Basket (the “Reallocated General Debt Facility”; which, for the avoidance of doubt, may be in the form of Indebtedness secured by a Lien on the Collateral on a pari passu basis or junior basis with the Initial Term Loans and the Initial Revolving Tranche or unsecured Indebtedness) (such sum, at any such ~~time~~time and subject to Section 1.02(i), the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the ~~Alternative Currency Equivalent of such amount~~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~~ 2.14, Incremental ~~Notes issued~~ Equivalent Debt Incurred pursuant to Section 2.15: , any Ratio Debt and any Ratio Acquisitions Debt: (A) unless the Borrowers elect otherwise, (x) 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 Borrowers shall be deemed to have used~~ the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to ~~utilization of~~ using amounts under the ~~Cash-Capped~~ Effective Extension Incremental ~~Facility and~~ Facility, the Prepayment-Based Incremental Facility, the Cash-Capped Incremental Facility, or the Reallocated General Debt Facility, (y) the Borrowers shall be deemed to have used the Prepayment-Based Incremental Facility prior to utilization of the CashCapped Incremental Facility and the Reallocated General Debt Facility, and (z) the Borrowers shall be deemed to have used the Cash-Capped Incremental Facility prior to utilization of the Reallocated General Debt Facility, (B) New Loan Commitments pursuant to this Section ~~2.14 and New~~ 2.14, Incremental ~~Notes~~ Equivalent Debt pursuant to Section ~~2.15~~ 2.15, Ratio Debt and Ratio Acquisitions Debt may be incurred substantially concurrently under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Effective Extension Incremental Facility, the Prepayment-Based Incremental Facility, the Cash-Capped Incremental Facility and the ~~Prepayment-Based Incremental Facility~~Reallocated General Debt Facility or any combination of any of the foregoing, and proceeds from any such incurrence may be utilized in a single transaction ~~by first~~ or series of related transactions by, unless the Borrower Representative elects otherwise, first, calculating the incurrence under the ~~Ratio-~~ Ratio-Based Incremental Facility (without inclusion of (x) any amounts incurred substantially concurrently ~~utilized~~ pursuant to the Prepayment-Based Incremental Facility, the Cash-Capped Incremental Facility or the ~~Prepayment-Based Incremental~~ Reallocated General Debt Facility, (y) any amounts incurred substantially concurrently under any fixed basket under Section 7.01 or (z) any revolving credit loans incurred substantially concurrently with such single transaction or series of related transactions) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ utilized pursuant to the Cash-Capped Incremental Facility and the Reallocated General Debt Facility) ~~and/or~~ and then calculating the incurrence under the Cash-Capped Incremental Facility and the Reallocated General Debt Facility, , (C) ~~the Borrowers may redesignate~~ all or any portion of Indebtedness originally designated as incurred under the Prepayment-Based Incremental Facility, the Cash-Capped Incremental Facility, or the Reallocated General Debt Facility shall automatically cease to be deemed incurred under the Prepayment-Based Incremental Facility, the Cash-Capped Incremental Facility or the ~~Prepayment-Based Incremental~~ Reallocated General Debt Facility ~~as having been~~ and shall instead be deemed incurred under the Ratio-Based Incremental Facility ~~so long as, at~~ from and after the ~~time of such redesignation,~~ first date on which the Borrowers would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such Indebtedness ~~being so redesignated~~ under the Ratio-Based Incremental Facility (for the avoidance of doubt, which determination shall be made without duplication of such Indebtedness originally designated as incurred under the Prepayment-Based Incremental Facility, the Cash-Capped Incremental Facility or the Reallocated General Debt Facility) (which, for the avoidance of doubt, shall have the effect of increasing the PrepaymentBased Incremental Facility, the Reallocated General Debt Facility and/or the Cash-Capped Incremental ~~Facility~~ Facility, as applicable, by all or such portion, as applicable, of the aggregate principal amount of such Indebtedness); provided that, for the avoidance of doubt, any Indebtedness originally designated as incurred under the Prepayment-Based Incremental Facility, ~~as applicable~~the Cash-Capped Incremental Facility, by or the ~~amount of such redesignated Indebtedness); provided, that such Indebtedness shall~~ Reallocated General Debt Facility and subsequently deemed to be ~~automatically redesignated~~ incurred under the Ratio-Based Incremental Facility pursuant to ~~the extent that, at the end of any fiscal quarter, such redesignation would be permitted under~~ this clause (C~~), and~~ ) shall not be subject to the MFN Provision as a result of being deemed incurred under the Ratio-Based Incremental Facility; and (D) solely for the purpose of cash netting in 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~~proceeds of any New Loan Commitments established pursuant to this Section 2.14, any Incremental Equivalent Debt Incurred pursuant to Section 2.15, any Ratio Debt and any Ratio Acquisitions Debt, in each case, incurred at such test date shall be excluded for purposes of calculating Adjusted Cash or Cash Equivalents. The Borrowers may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as the Borrowers may deem appropriate. (b) For the avoidance of doubt, the Borrowers will not be obligated to approach any Lender to participate in any New Loan Commitments. Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The 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 (in each case, to the extent the consent of any of the foregoing would be required to assign Revolving Credit Loans or Term Loans, as applicable, to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oCommitm

Appears in 1 contract

Sources: Credit Agreement (Arxis, Inc.)

Incremental Facilities. (a) The ~~Borrowers may,~~ Borrower may from time to time on or after the Fourth Amendment Closing Date, ~~upon~~ by written notice ~~by the Parent Borrower~~ to ~~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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof~~, request (i) an increase in to the existing Revolving Commitments ~~under~~ (any such increase, the “New Revolving Commitments” and any Revolving ~~Tranche (which shall be on the same terms as, and become part of~~Loans thereunder, the “New Revolving ~~Tranche proposed to be increased~~Loans”) ~~(a “Revolving Credit Commitment Increase”),~~ and/or (ii) an increase ~~in any~~ to an existing Class of Term ~~Loan Tranche then outstanding (which shall be on~~ Loans and/or 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 establishment of one or more ~~new revolving credit facilities to~~ Term Loan Commitments hereunder (the ~~Facilities~~“New Term Loan Commitments,” and collectively with any New Revolving Commitments, ~~in each case~~the “New Commitments” and each, ~~in such currency or currencies as the Parent Borrower identifies in such notice (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 ~~Facility” and~~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 ~~advance made~~ 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 ~~Lender thereunder~~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, ~~a “New Revolving Loan”; and~~ however, that notwithstanding the ~~commitments thereof~~foregoing, the ~~“New Revolving Commitment”~~Borrower may, at any time following the Fourth Amendment Closing Date and on or prior to the earlier of (i) June 30, 2020 and (ivii) the ~~addition~~ Taurus Special Mandatory Prepayment request the establishment of one or more ~~new term loan facilities~~Term Loan Commitments hereunder (or, ~~in each case, in such currency or currencies as~~ if 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~~Administrative Agent so agree, an increase to the existing Tranche B-1 Term Loan Commitments) (such New Commitments, the “~~New~~ Taurus Term ~~Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New~~ Loan ~~Commitments~~Facility”) in an amount not to exceed $400,000,000 in the ~~sum~~ 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 ~~greater of~~ date (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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 each, an “~~Consolidated EBITDA” and Section 1.10) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility~~Increased Amount Date”) ~~so long~~ 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 ~~Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a~~Administrative Agent) and (2ii) ~~New Incremental Notes that are secured on a pari passu basis with~~ the ~~Term Loans and (B) all repurchases~~ identity of ~~(1) Term Loans made pursuant~~ each Lender or other Person reasonably acceptable to the ~~terms hereof and~~ Administrative Agent (2) such other Person, a “New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of Revolving Credit ~~Loans made pursuant to Section 2.05(a~~Lender” or “New Term Loan Lender,” as applicable, and collectively each a “New Lender” and together “New Lenders”) to whom 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or Borrower proposes any portion of ~~Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility~~ such New Revolving Commitments or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental FacilityNew Term Loan Commitments, as applicable, by be allocated and the ~~amount~~ amounts of such ~~redesignated Indebtedness)~~allocations; ~~provided,~~ provided that the Administrative Agent (and/or its Affiliates) may elect or decline to arrange such ~~Indebtedness shall be automatically redesignated to the extent that, at the end of~~ New Revolving Commitments or New Term Loan Commitments in its sole discretion and any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (b) Any Lender approached to ~~participate in any~~ provide all or a portion of the New Revolving Commitments or New Term 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~~ provide a ~~Revolving Credit Commitment Increase or~~ New Revolving ~~Facility~~Commitment or a New Term Loan Commitment; provided, ~~with the consent of the Administrative Agent~~further, ~~each L/C Issuer (in each case~~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 ~~the foregoing would be required to assign Revolving Credit Loans~~ such Increased Amount Date; provided, that (i) no Default or ~~Term Loans, as applicable,~~ Event of Default shall exist on such Increased Amount Date before or after giving effect to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent New Commitments (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, in connection with ~~respect~~ any Limited Conditionality Acquisition, it shall only be required that no Event of Default pursuant to ~~any New Loan Commitments~~Sections 8.1(a), ~~the Borrowers must provide~~ 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 ~~the Administrative Agent (x) the documentation providing for~~ such New ~~Loan Commitments and (y) a notice of the identity of any new Lender~~Commitments); provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) ~~a New Term Facility or New Revolving Facility is added~~ the representations and warranties set forth in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents ~~may~~ shall be ~~amended~~ 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 ~~writing~~ 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 (~~which may~~ 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 ~~Borrowers~~ Borrower, such New Lender, and the ~~Incremental Arranger (~~Administrative Agent, and each of which shall be recorded in the ~~Lenders hereby authorize the any such Incremental Arranger to execute~~ Register and ~~deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases~~ shall be subject to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased requirements set forth in Section ~~2.07(a~~2.20(g); (v) ~~(or~~ the Borrower shall make any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such datepayments required, 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 Increaseif any, ~~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)~~ 2.19 in connection with ~~any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)~~the New Revolving Commitments; (vi) ~~would exist~~ both before and 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then othe

Appears in 1 contract

Sources: Credit Agreement (E.W. SCRIPPS Co)

Incremental Facilities. (a) The ~~Borrowers~~ Parent Borrower may, ~~from time to time after the Closing Date, upon~~ by written notice ~~by the Parent Borrower~~ to the ~~Person appointed by the Borrower~~ Administrative Agent at any time, on one or more occasions, request 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 add one or more new Classes of term facilities and/or increase the principal amount of any Class of Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the 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 Classes of incremental revolving ~~credit~~ facilities ~~to the Facilities~~(any such new Class or increase, ~~in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a~~ an “~~New~~ Incremental Revolving Facility” and, together with any ~~advance made by a Lender thereunder~~Incremental Term Facility, a “~~New Revolving Loan~~Incremental Facilities”; and the commitments thereof, the “New Revolving Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender loans thereunder, a “~~New Term Loan”; and the commitments thereof~~Incremental Revolving Loans” and, ~~the “New Term Commitment” and~~ together with ~~the Revolving Credit Commitment Increase~~any Incremental Term Loans, ~~the New Revolving Commitments and the Term Commitment Increase, the~~ “~~New Loan Commitments~~Incremental Loans”) in an aggregate amount not to exceed the ~~sum~~ 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) ~~the greater~~ with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of ~~(A)~~ not less than $~~100,000,000~~ 10,000,000, and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”)$5,000,000 increments in excess thereof, (y) ~~an unlimited amount (the “Ratio-Based~~ with respect to Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments Facilities 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 amounts under the Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the an aggregate principal amount of ~~Indebtedness being so redesignated under~~ not less than an amount in such Alternative Currency equal to the ~~Ratio-Based~~ 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 ~~(which,~~ Activation Notice. Any Incremental Revolving Facility may provide for the ~~avoidance of doubt, shall have~~ 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 ~~effect of increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental~~ Revolving Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds. (b) ~~Any~~ Incremental Loans may be provided by any existing Lender ~~approached~~ (it being understood each existing Lender shall have no obligation to participate in any ~~New Loan Commitments may elect~~ Incremental Facility), or ~~decline, in its sole discretion, to participate in~~ by any other lender (any 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 other lender being called an “Additional Lender”); provided that the Administrative ~~Agent,~~ Agent and each ~~L/C Issuer~~ Issuing Bank shall have consented (~~in each case,~~ such consent not to ~~the extent the consent of any of the foregoing would be required to assign Revolving Credit Loans or Term Loans, as applicable, to such Eligible Assignee, which consents shall not~~ be unreasonably withheld, conditioned or delayed) to ~~become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall~~ 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 ~~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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Additional Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) ~~If (i) a Revolving Tranche~~ The creation or ~~a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term~~ provision of any Incremental Facility or ~~New Revolving Facility is added in accordance with this Section 2.14,~~ Incremental Loan shall not require the ~~Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation~~ approval of ~~such increase, New Term~~ any existing Lender other than any existing Lender providing all or part of any Incremental Facility or ~~New Revolving Facility among the applicable Lenders. The~~ Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective DateLoan. (d) ~~With respect~~ The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to ~~any~~ 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 ~~Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant~~ Commitments to ~~this Section 2.14,~~ be set forth in the respective Incremental Assumption Agreement; provided that (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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 date of any ~~New Revolving Facility,~~ Incremental Term Loan (1x) ~~other than with respect to any Extendable Bridge Loans, the final maturity~~ that is a “term loan A” shall be no earlier than the Latest Maturity ~~Date applicable (e) On the Increase Effective~~ Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in Term A Loans then 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) ifthat is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans then outstanding, on (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 ~~increase~~Incremental Term Loan, ~~there are any Revolving Credit Loans outstanding,~~ (iii) such ~~Revolving Credit Loans~~ Incremental Facilities shall be secured on ~~or prior~~ a pari passu basis with respect to the ~~Increase Effective~~ 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 ~~prepaid from~~ unsecured (it being understood any such Indebtedness incurred in reliance on the ~~proceeds~~ 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 ~~Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments~~calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), ~~which~~ (iv) any mandatory 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 (other than scheduled amortization payments) of Incremental 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 with all then existing Term Loans (~~based~~ 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 ~~relative sizes~~ 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 ~~various outstanding Borrowings), so that (i) Any New Revolving Facility and New~~ Restatement Effective Date under the Ratio Incremental Amount designated as Term ~~Facility shall~~ B Loans that rank pari passu in right of payment and security with the ~~other Facilities~~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 ~~Guaranteed~~ 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 ~~Borrower or Guarantor under each of the other Facilities,~~ Subsidiary Loan Party and ~~be unsecured or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same~~ (~~or less~~ix) ~~Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be~~ subject to ~~intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent),~~ clauses (i) and (ii) above, 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, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect amortization schedule applicable to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental ~~Facility, the All-in Yield payable by the Borrowers applicable to such New~~ Term Facility shall be determined by the ~~Borrowers~~ Parent Borrower and ~~the Lenders providing such New Term Facility~~ lenders thereunder. All terms and ~~shall~~ documentation with respect to Incremental Facilities which are not ~~be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield~~ substantially consistent from those with respect to the ~~InitialTranche B Term~~ Loans ~~is increased~~ under the existing applicable Credit Facility shall be reasonably satisfactory to the ~~amount necessary so that~~ Administrative Agent (except to the ~~difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause~~ extent (~~iii~~i) ~~shall not apply to any New Term Facility that~~ permitted by clauses (Ai) ~~is in an aggregate principal amount~~ through (~~together with any other such New Term Facility~~vii) ~~equal to or less than $100,000,000~~above, (Bii) ~~has a final maturity later than one year~~ 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 ~~then o~~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 Borrowers ~~may~~may (on a joint and several basis), from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower Representative to the ~~Person appointed by the Borrower to arrange an incremental Facility (such Person~~ Administrative Agent (who ~~(i) may be~~ shall promptly notify the ~~Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”~~applicable Lenders) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 ~~revolving credit~~ term loan 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice 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~~ Increase and the Term Commitment Increase, the “New Loan Commitments”) in by an amount not to exceed ~~the sum of~~ (x) ~~the greater~~ a Dollar Amount of ~~(A)~~ $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) 700,000,000 (the “Cash-Capped Incremental Facility”), ) plus (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum First Lien Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied ~~and~~ plus (z) an amount equal to ~~(i)(A)~~ all voluntary prepayments of ~~(1)~~ Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such ~~sum~~amounts described in clauses (x) through (z), at any such time, the “Incremental Amount”); provided that (i) no Event of Default (subject to Section 1.02(i)) would exist after giving effect to any such request and (ii) any such request for an increase shall be in a minimum amount of the lesser of (x) a Dollar Amount of $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ 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:~~ 2.17, (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 ~~compliant therewith~~permitted by the pro forma calculation of the First Lien Net Leverage Ratio) prior to utilization of the Cash-Capped Incremental Facility and ~~the Prepayment-Based Incremental Facility,~~ (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section ~~2.15~~ 2.17 may be incurred under ~~the Ratio-Based Incremental Facility~~ clauses (~~to the extent compliant therewith~~x), ~~the Cash-Capped Incremental Facility~~ (y) and ~~the Prepayment-Based Incremental Facility~~(z) above, and proceeds from any such incurrence under clauses (x), (y) and (z) above may be utilized in a single transaction by first calculating the incurrence under ~~the Ratio- Based Incremental Facility~~ clause (y) (without inclusion of any amounts ~~substantially concurrently~~ utilized pursuant to ~~the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility~~clause (x)) and then calculating the incurrence under ~~the Prepayment-Based Incremental Facility~~ clause (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at x)). At the time of sending such ~~redesignation~~notice to the applicable Lenders, the ~~Borrowers would be permitted~~ Borrower Representative (in consultation with the Administrative Agent) shall specify the time period within which each applicable Lender is requested to ~~incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility~~ respond (which, ~~for~~ unless the ~~avoidance of doubt~~Administrative Agent otherwise agrees, shall ~~have~~ in no event be less than ten Business Days from the ~~effect~~ date of ~~increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility, as applicable, by the amount~~ delivery of such ~~redesignated Indebtedness~~notice); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds. (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 ~~to participate in any New Loan Commitments~~ may elect or decline, in its sole discretion, to ~~participate in~~ 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, as applicable, 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, each L/C Issuer and the Swing Line Lender (~~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~~ consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed) to become Lenders pursuant to a joinder agreement to this ~~Agreement. Neither the Administrative Agent nor the Collateral Agent (~~Agreement in ~~their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14~~ form 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 Borrowers must provide~~ substance reasonably satisfactory to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestAgent. (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~~ Loan 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,~~ increase or New Term ~~Facility or New Revolving~~ Facility among the applicable Lenders. The ~~Incremental Arranger~~ Administrative Agent shall promptly notify the applicable Lenders of the final allocation of such ~~increase,~~ increase or New Term ~~Facility or New Revolving~~ Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term ~~Facility or New Revolving~~ Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the ~~Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)~~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, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date~~, in the case of an increase to an existing Term Loan Tranche~~, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in 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)~~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 (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist after giving effect to such increase; , (ii) ) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans~~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 (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 B Facility 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 and/or Section 6.16 with respect to Holdings, the Borrowers, all Material Subsidiary Guarantors and each other 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 Term Facility shall be agreed to by the Lenders providing such increase or New Term Facility, as applicable, and the Administrative Agent and the Borrowers; provided, further, in connection with the incurrence of any New Term Loans, if the proceeds of such New Term Loans 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 Acquisition, then (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) no Event of Default under Sections 8.01(a), (f) or (g) would exist after giving effect to such incurrence (“Permitted Acquisition Provisions”). (e) On the Increase Effective Date with respect to ~~an increase to an existing~~ 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 the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C ~~Obligations~~ 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) participations hereunder in L/C ~~Obligations represented~~ Advances and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase ~~Lender~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), 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~~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~~ payment, have the ~~other Facilities, not be Guaranteed by any Person that is not a Borrower or Guarantor under each of the other Facilities~~same guarantees as, and be ~~unsecured or~~ unsecured, secured either on a ~~pari passu~~ first lien “equal and ratable” basis with the other Facilities or on a “junior” ~~basis to the other Facilities~~basis, in each case over the same ~~(or less)~~ Collateral that secures the Facilities (and in each case, the ~~case~~ application of any proceeds of the Collateral securing such ~~junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or~~ New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the ~~Incremental Arranger and, if such Incremental Arranger is not the~~ Administrative Agent, ; it being understood that the Intercreditor Agreement is reasonably satisfactory to the Administrative Agent), (ii) the New Term Facility ~~or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and~~ shall share ratably in any ~~event no more favorably than)~~ prepayments of the Term ~~Facility~~ Loans pursuant to Section 2.05 (or ~~Revolving Credit Facility, as~~ otherwise provide for more favorable prepayment treatment for the ~~case may be, unless the Borrowers otherwise elect (but in any event no more favorably~~ then outstanding Term Loan Tranches than the ~~existing~~ Term Loans ~~or Revolving Credit Loans, as applicable),~~ under such New Term Facility) and (iii) ~~with respect~~ the all-in yield (whether in the form of interest rate margins, original issue discount, upfront fees, or Eurocurrency Rate or Base Rate floors (but not arrangement or underwriting fees paid to ~~any Dollar~~arrangers for their own account) and equating original issue discount and upfront fees to interest rate for purposes of this calculation, assuming a four-~~denominated, floating rate~~ year life to maturity) applicable to such pari passu New Term Facility ~~that is pari passu in right~~ of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility like currency shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 50 basis points higher than the corresponding ~~All~~all-in ~~Yield payable by~~ yield (giving effect to interest rate margins, original issue discount, upfront fees and Eurocurrency Rate and Base Rate floors, in the ~~Borrowers~~ case of original issue discount and upfront fees calculated as provided in the preceding parenthetical) for any corresponding Term Loan Tranche, in the ~~InitialTranche B~~ case of Euro Term Loans, incurred on the Fourth Amendment Effective Date or, in the case of Term Loans denominated in Dollars, incurred on the Sixth Amendment Effective Date, unless the ~~All~~all-in ~~Yield~~ yield with respect to ~~the InitialTranche B~~ each applicable Term ~~Loans~~ Loan Tranche is increased to the amount necessary so that the difference between the ~~All~~all-in ~~Yield~~ yield with respect to such New Term Facility and the corresponding ~~All~~all-in ~~Yield~~ yield on ~~the InitialTranche B~~ such applicable Term ~~Loans~~ Loan Tranche is equal to 75 50 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o.

Appears in 1 contract

Sources: Credit Agreement (Axalta Coating Systems Ltd.)

Incremental Facilities. (a) The Borrowers ~~may~~may (on a joint and several basis), from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower Representative to the ~~Person appointed by the Borrower to arrange an incremental Facility (such Person~~ Administrative Agent (who ~~(i)~~ shall promptly notify the applicable Lenders, which, for the avoidance of doubt, do not need to be all Lenders under any Tranche and may be ~~the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”~~new lenders not currently Lenders hereunder) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 ~~revolving credit~~ term loan 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice 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~~ Increase and the Term Commitment Increase, the “New Loan Commitments”) in by an amount not to exceed ~~the sum of~~ (x) a Dollar Amount equal to the greater of (A) $~~100,000,000~~ 783,000,000 and (B) ~~Consolidated~~ 100% of the EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) Grower Amount (the “Cash-Capped Incremental Facility”), ) plus (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied ~~and~~ plus (z) an amount equal to (~~i)(A~~i) (A) all voluntary prepayments of ~~(1)~~ Term Loans (including, for the avoidance of doubt, any New Term Loans that are pari passu in right of payment and security with the then-outstanding Term Loans) made pursuant to Section 2.05(a) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (~~B) all redemptions, repurchases and cancellations of ~~(1)~~ Term Loans (including, for the avoidance of doubt, any New Term Loans that are pari passu in right of payment and security with the then-outstanding Term Loans) made pursuant to the terms hereof (with credit given for the principal amount of the Loans so repurchased or canceled) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (~~ii~~) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii~~) 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 (~~excluding, for the avoidance of doubt, proceeds of~~ excluding any revolving credit ~~facility~~ facilities (including the Revolving Credit Facility)) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such ~~sum~~amounts described in clauses (x) through (z), at any such time, the “Incremental Amount”); provided that (i) no payment or bankruptcy Event of Default (subject to Section 1.02(i)) would exist after giving effect to any such request and (ii) any such request for an increase shall be in a minimum amount of the lesser of (x) a Dollar Amount of $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ 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:~~ 2.17, (A) at the Borrowers’ option, the Borrowers shall be deemed to have used amounts under the ~~Prepayment~~Ratio-Based Incremental ~~Facility, if any~~Facility (to the extent compliant therewith), prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used the ~~Ratio~~Prepayment-Based Incremental Facility ~~(to the extent compliant therewith)~~ prior to utilization of the Cash-Capped Incremental ~~Facility and the Prepayment-Based Incremental~~ Facility, (B) such New Loan Commitments ~~pursuant to this Section 2.14~~ and such New Incremental Notes ~~pursuant to Section 2.15~~ may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by or series of related transactions by, at Borrowers’ option, first calculating the incurrence under the Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the PrepaymentRatio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility, the Prepayment-Based Incremental Facility or any amounts substantially concurrently incurred under Section 7.03 (other than any Permitted Additional Debt) ~~and/or~~ and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash-Capped Incremental Facility) and then calculating the incurrence under the Cash-Capped Incremental ~~Facility,~~ Facility and (C) unless the Borrowers ~~may redesignate~~ elect otherwise, all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility ~~as having~~ shall automatically be deemed to have been incurred under the Ratio-Based Incremental Facility ~~so long as, at~~ from and after the ~~time of such redesignation,~~ first date on which the Borrowers would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such 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 or and/or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at . At the time of ~~incurrence~~sending such notice to the applicable Lenders, ~~any cash proceeds~~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 ~~to participate in any New Loan Commitments~~ may elect or decline, in its sole discretion, to ~~participate in~~ 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, as applicable, 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, each L/C Issuer and the Swing Line Lender (~~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~~ consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed) to become Lenders pursuant to a joinder agreement to this ~~Agreement. Neither the Administrative Agent nor the Collateral Agent (~~Agreement in ~~their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14~~ form 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 Borrowers must provide~~ substance reasonably satisfactory to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestAgent. (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~~ Loan 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,~~ increase or New Term ~~Facility or New Revolving~~ Facility among the applicable Lenders. The ~~Incremental Arranger~~ Administrative Agent shall promptly notify the applicable Lenders of the final allocation of such ~~increase,~~ increase or New Term ~~Facility or New Revolving~~ Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term ~~Facility or New Revolving~~ Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the ~~Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)~~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, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date~~, in the case of an increase to an existing Term Loan Tranche~~, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in 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)~~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) subject to Section 1.02(i), no Event of Default under Sections 8.01(a), (~~subject to Section 1.02(i~~f) ~~in connection with any acquisition Investment, Restricted Payment~~ or ~~other transaction permitted pursuant to this Agreement as described in Section 1.02(i)~~(g) would exist immediately after giving effect to such increase; , (ii) ) (A) in the case of any ~~increase of the~~ Revolving ~~Tranche~~Credit Commitment Increase, (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) other than with respect to any Extendable Bridge Loans,~~ Term Commitment Increase 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, the Term B-45 Dollar Loans and (C) in the case of any New Term Facility, other than in the case of Extendable Bridge Loans/Interim Debt and amounts not in excess of the Inside Maturity Basket 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 that of the Term B-45 Dollar Loans, (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, to the extent the terms and documentation of any such New Term Facility are not consistent with the Term B-45 Dollar Facility, any such New Term Facility shall either (x) reflect market terms and conditions (as determined by the Borrowers in good faith) at the time of incurrence of such New Term Facility or (y) be reasonably satisfactory to the Administrative Agent (it being understood that no consent shall be required by the Administrative Agent if any covenants or other provisions are only applicable after the then-Latest Maturity Date for the Term B-45 Dollar Facility) 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 or delivered from time to time pursuant to Section 6.12 and/or Section 6.16 with respect to Holdings, the Borrowers, all Material Subsidiary Guarantors and each other 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 Term Facility shall be agreed to by the Lenders providing such increase or New Term Facility, as applicable, and the Administrative Agent and the Borrowers; provided, further, in connection with the incurrence of any New Term Loans, if the proceeds of such New Term Loans 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 Acquisition, then (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) no Event of Default under Sections 8.01(a), (f) or (g) would exist immediately after giving effect to such incurrence (“Permitted Acquisition Provisions”). (e) On the Increase Effective Date with respect to ~~an increase to an existing~~ 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 the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s participations hereunder in outstanding L/C ~~Obligations~~ 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) participations hereunder in L/C ~~Obligations represented~~ Advances and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase ~~Lender~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), 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~~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 (A) rank pari passu in right of payment with the other Term Facilities, (B) not be Guaranteed by any ~~Person~~ Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor under each of the other Facilities, and be unsecured or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shallprovided that, for ~~purposes~~ the avoidance of ~~prepayments~~doubt, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oneed not be Guaranteed by all Loan Partie

Appears in 1 contract

Sources: Credit Agreement (Axalta Coating Systems Ltd.)

Incremental Facilities. (a) The ~~Borrowers~~ Parent Borrower may, ~~from time to time after the Closing Date, upon~~ by written notice ~~by the Parent Borrower~~ to the ~~Person appointed by the Borrower~~ Administrative Agent at any time, on one or more occasions, request 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving ~~credit~~ facilities to and/or increase the ~~Facilities, in each case, in~~ principal amount of any such ~~currency or currencies as the Parent Borrower identifies in such notice~~ tranche of incremental revolving facilities (each, a an “~~New~~ Incremental Revolving Facility” and, together with any ~~advance made by a Lender thereunder~~Incremental Term Facility, a “~~New Revolving Loan~~Incremental Facilities”; and the commitments thereof, the “New Revolving Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender loans thereunder, a “~~New Term Loan”; and the commitments thereof~~Incremental Revolving Loans” and, ~~the “New Term Commitment” and~~ together with ~~the Revolving Credit Commitment Increase~~any Incremental Term Loans, ~~the New Revolving Commitments and the Term Commitment Increase, the~~ “~~New Loan Commitments~~Incremental Loans”) in an aggregate amount not to exceed the ~~sum~~ 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 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 ~~greater~~ Dollar Equivalent of ~~(A)~~ $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”)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 ~~unlimited amount~~ 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 “~~Ratio-Based~~ 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) ~~so long~~ 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 ~~Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal~~ Administrative Agent shall reasonably specify to ~~(i)(A) all voluntary prepayments~~ evidence the Incremental Facilities of ~~(1)~~ 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 ~~pursuant~~ thereunder; provided that, (i) subject to ~~Section 2.05(a~~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) ~~and (2) New Incremental Notes~~ that ~~are secured on~~ is a ~~pari passu basis~~ “term loan A” shall be no earlier than the Latest Maturity Date with ~~the~~ respect to Term A Loans and (y) that is a “term loan B~~) all repurchases of (1)~~ ” shall be no earlier than the Latest Maturity Date with respect to Term ~~Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term~~ B Loans, (ii) ~~voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and~~ subject to exceptions for customary bridge financings (~~iii) voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a)~~ to the extent ~~accompanied by~~ convertible on customary terms into a ~~corresponding,~~ permanent ~~reduction~~ instrument otherwise meeting the conditions in ~~the Revolving Credit Commitments pursuant to Section 2.06(a~~this clause (ii)), ~~in each case,~~ the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the ~~extent not funded with~~ remaining weighted average life to maturity of the ~~proceeds of long term Indebtedness~~ then-existing Term A Loans (~~excluding~~it being agreed, for the avoidance of doubt, ~~proceeds~~ that when calculating the weighted average life to maturity of any ~~revolving credit facility (including~~ Indebtedness being amended, restated, amended and restated, supplemented, extended, renewed, replaced, refinanced or otherwise modified, the ~~Revolving Credit Facility)) and in the case~~ effects of any amortization or prepayments made on such ~~prepayment or repurchase at a price below par, based on~~ Indebtedness vis-α-vis the ~~amount~~ amortization schedule prior to the date of the ~~actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum~~applicable amended, ~~at any such time~~restatement, ~~the “Incremental Amount”); provided that any such request for an increase~~ amendment and restatement, supplement, extension, renewal, replacement, refinancing or other modification shall be ~~in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount~~disregarded), 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 is a “term loan B” shall be ~~deemed~~ no shorter than the remaining weighted average life to ~~have used amounts under the Prepayment-Based Incremental Facility, if any, prior to utilization~~ maturity of the ~~Cash~~then-~~Capped Incremental Facility~~existing Term B Loans, ~~and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization~~ in each case calculated as of the ~~Cash-Capped~~ date of making such Incremental ~~Facility and the Prepayment-Based Incremental Facility,~~ Term Loan (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness it being ~~so redesignated under the Ratio-Based Incremental Facility (which~~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-α-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 ~~have~~ be disregarded), (iii) such Incremental Facilities may be pari passu or subordinated in right of payment with respect to the ~~effect~~ Loans outstanding (or made on) the FifthSixth Amendment Date and/or pari passu or subordinated in right of ~~increasing~~ security with respect to such Loans (and to the ~~Cash~~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-~~Capped~~ 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 ~~Facility~~ 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 ~~the Prepayment-Based Incremental Facility~~receive, as applicable, ~~by the amount of such redesignated Indebtedness~~any prepayments on a less than pro rata basis (but not on a greater than pro rata basis)~~; provided~~, ~~that such Indebtedness shall be automatically redesignated~~ (v) subject to exceptions for customary bridge financings (to the extent ~~that, at~~ convertible on customary terms into a permanent instrument otherwise meeting the ~~end of any fiscal quarter, such redesignation would be permitted under~~ conditions in this clause (Cv)), ~~and (D) solely for~~ the ~~purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio~~ maturity date 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 (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, each L/C Issuer (in each case, to the extent the consent commitment reduction date of any ~~of the foregoing would be required to assign~~ Incremental Revolving Credit Loans or Term Loans, as applicable, to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Latest Maturity ~~Date applicable (e) On the Increase Effective~~ Date with respect to ~~an increase to an existing~~ Revolving ~~Tranche~~Commitments, (xvi) ~~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~~ if the Effective Yield in respect of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Incremental Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall 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 ~~other Facilities~~FifthSixth 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 CREDIT AGREEMENT, Page 100 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, (viii) shall not be ~~Guaranteed~~ guaranteed by any Person that is not a ~~Borrower or Guarantor under each of the other Facilities,~~ Loan Party and ~~be unsecured or secured either on a pari passu basis with the other Facilities or on a “junior” basis~~ (ix) to the ~~other Facilities~~extent secured, ~~in each case over~~ shall be secured only by the ~~same~~ Collateral (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agenta portion thereof), (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, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) . All terms with respect to any ~~Dollar-denominated, floating rate New Term~~ Incremental Facility ~~that is pari passu in right of payments and secured on~~ which are materially more restrictive (taken as a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more whole) than ~~75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield~~ those with respect to the ~~InitialTranche B Term~~ Loans ~~is increased to~~ under the ~~amount necessary so that~~ existing applicable Class of Credit Facility shall be (x) permitted by clauses (i) through (viiix ) of the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000preceding sentence, (By) ~~has a final maturity later than one year~~ applicable only after the Latest Maturity Date of the ~~then o~~relevant Credit Facility outstanding on the FifthSixth 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

Sources: Credit Agreement (Darling Ingredients Inc.)

Incremental Facilities. ~~(a) The Borrowers may, from time to time after the Closing Date, upon notice by the Parent Borrower to the Person appointed by the Borrower to arrange an incremental Facility (such Person (who~~ (i) ~~may be~~ After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request the establishment of (x) one or more (A) additional tranches of term 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 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 ~~it so agrees~~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 ~~Person appointed~~ 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 ~~Parent Borrower~~Administrative Agent to not be unreasonably withheld or delayed). (b) In each case, such Incremental Commitments shall become effective as of the ~~“Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof~~applicable Increased Amount Date, ~~request~~ provided that (i) ~~an increase~~ 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 ~~Commitments under~~ 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 ~~Tranche~~ 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 ~~same terms as~~Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, ~~and become part of, the Revolving Tranche proposed~~ commitment or other similar fees payable 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 revolving credit facilities to the Facilities, in each case, in such currency~~ arrangers (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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”their affiliates) in ~~an amount~~ connection therewith) shall not to exceed the sum of (x) the ~~greater of (A) $100,000,000 and (B) Consolidated EBITDA~~ Applicable Margin for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Revolving Loans made pursuant to the ~~terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien~~ Revolving Commitments that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based effect on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amountIncreased Amount Date, and (y) the ~~entire amount~~ 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, and any other Incremental Tranche A Term Loans and the Tranche B Term Loans), if the final maturity date of any ~~increase~~ 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 ~~may~~ 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 (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be ~~requested under this Section 2.14~~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 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 ~~for purposes~~ the interest margin in respect of ~~any New Loan Commitments established pursuant to this Section 2.14 and New~~ such 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Synthetic L/C Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be ~~incurred under~~ increased by an additional 200 basis points in the ~~Ratio-Based Incremental Facility (to~~ form of an additional OID or upfront fees if reasonably necessary after increasing the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility (which, Applicable Margin for the ~~avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility,~~ Term Loans as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under set forth in this clause (Cvii), ~~and~~ and (Dviii) ~~solely for~~ the ~~purpose of calculating the Consolidated First Lien Net Leverage Ratio~~Increment Revolving Commitments, the ~~Consolidated Senior Secured Net Leverage Ratio~~ Incremental Term Loan Commitments 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 (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, each Synthetic 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) Commitments 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facilityeffected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender 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 ~~Section 2.14~~Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, 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 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 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 Loan Commitments 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 Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, 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 Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the “Incremental 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 ~~amended~~ necessary or appropriate, in ~~a writing~~ the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. Notwithstanding anything in this Agreement to the contrary, (~~which may be executed and delivered by~~ i) the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases references to the Term ~~Loan Tranche~~ Loans in this Section 2.23 shall be deemed to include the Replacement Term Loans and (ii) the references to the Revolving Commitments or the Revolving ~~Tranche and~~ Loans in this Section 2.23 shall be deemed to ~~reflect any technical changes necessary~~ include the Extended Revolving Commitments or ~~appropriate to give effect to such increase or new facility in accordance with its terms~~ the Extended Revolving Loans, as ~~set forth herein, including, for~~ applicable. For the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Tranche A Term Loans ~~made under the Term Loan~~ constitute Incremental 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~~ A Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Tranche B Term Loans ~~or Revolving Credit~~ constitute Incremental Term Loans~~, as applicable)~~, and (iii) ~~with respect to any Dollar-denominated, floating rate New~~ the Tranche A Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility Lenders shall be ~~determined by the Borrowers~~ Incremental Term Loan Lenders, in each case, for all purposes of this Agreement and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other ~~such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o~~Loan Documents.

Appears in 1 contract

Sources: Credit Agreement (Avis Budget Group, Inc.)

Incremental Facilities. (a) The Borrowers ~~may~~may (on a joint and several basis), from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower Representative to the ~~Person appointed by the Borrower to arrange an incremental Facility (such Person~~ Administrative Agent (who ~~(i) may be~~ shall promptly notify the ~~Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”~~applicable Lenders) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 ~~revolving credit~~ term loan 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice 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~~ Increase and the Term Commitment Increase, the “New Loan Commitments”) in by an amount not to exceed ~~the sum of~~ (x) ~~the greater~~ a Dollar Amount of ~~(A)~~ $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) 700,000,000 (the “Cash-Capped Incremental Facility”), ) plus (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum First Lien Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied ~~and~~ plus (z) an amount equal to ~~(i)(A)~~ all voluntary prepayments of ~~(1)~~ Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such ~~sum~~amounts described in clauses (x) through (z), at any such time, the “Incremental Amount”); provided that (i) no Event of Default (subject to Section 1.02(i)) would exist after giving effect to any such request and (ii) any such request for an increase shall be in a minimum amount of the lesser of (x) a Dollar Amount of $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ 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:~~ 2.17, (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 ~~compliant therewith~~permitted by the pro forma calculation of the First Lien Net Leverage Ratio) prior to utilization of the Cash-Capped Incremental Facility and ~~the Prepayment-Based Incremental Facility,~~ (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section ~~2.15~~ 2.17 may be incurred under ~~the Ratio-Based Incremental Facility~~ clauses (~~to the extent compliant therewith~~x), ~~the Cash-Capped Incremental Facility~~ (y) and ~~the Prepayment-Based Incremental Facility~~(z) above, and proceeds from any such incurrence under clauses (x), (y) and (z) above may be utilized in a single transaction by first calculating the incurrence under ~~the Ratio- Based Incremental Facility~~ clause (y) (without inclusion of any amounts ~~substantially concurrently~~ utilized pursuant to ~~the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility~~clause (x)) and then calculating the incurrence under ~~the Prepayment-Based Incremental Facility~~ clause (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at x)). At the time of sending such ~~redesignation~~notice to the applicable Lenders, the ~~Borrowers would be permitted~~ Borrower Representative (in consultation with the US-DOCS\90330440.2103232196.9 Administrative Agent) shall specify the time period within which each applicable Lender is requested to ~~incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility~~ respond (which, ~~for~~ unless the ~~avoidance of doubt~~Administrative Agent otherwise agrees, shall ~~have~~ in no event be less than ten Business Days from the ~~effect~~ date of ~~increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility, as applicable, by the amount~~ delivery of such ~~redesignated Indebtedness~~notice); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds. (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 ~~to participate in any New Loan Commitments~~ may elect or decline, in its sole discretion, to ~~participate in~~ 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, as applicable, 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, each L/C Issuer and the Swing Line Lender (~~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~~ consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed) to become Lenders pursuant to a joinder agreement to this ~~Agreement. Neither the Administrative Agent nor the Collateral Agent (~~Agreement in ~~their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14~~ form 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 Borrowers must provide~~ substance reasonably satisfactory to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestAgent. (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~~ Loan 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,~~ increase or New Term ~~Facility or New Revolving~~ Facility among the applicable Lenders. The ~~Incremental Arranger~~ Administrative Agent shall promptly notify the applicable Lenders of the final allocation of such ~~increase,~~ increase or New Term ~~Facility or New Revolving~~ Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term ~~Facility or New Revolving~~ Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the ~~Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)~~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, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date~~, in the case of an increase to an existing Term Loan Tranche~~, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in 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)~~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 (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist after giving effect to such increase; , (ii) ) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans~~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 US-DOCS\90330440.2103232196.9 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 B Facility 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 and/or Section 6.16 with respect to Holdings, the Borrowers, all Material Subsidiary Guarantors and each other 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 Term Facility shall be agreed to by the Lenders providing such increase or New Term Facility, as applicable, and the Administrative Agent and the Borrowers; provided, further, in connection with the incurrence of any New Term Loans, if the proceeds of such New Term Loans 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 Acquisition, then (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) no Event of Default under Sections 8.01(a), (f) or (g) would exist after giving effect to such incurrence (“Permitted Acquisition Provisions”). (e) On the Increase Effective Date with respect to ~~an increase to an existing~~ 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 the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C ~~Obligations~~ 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) participations hereunder in L/C ~~Obligations represented~~ Advances and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase ~~Lender~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), 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 US-DOCS\90330440.2103232196.9 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~~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~~ payment, have the ~~other Facilities, not be Guaranteed by any Person that is not a Borrower or Guarantor under each of the other Facilities~~same guarantees as, and be ~~unsecured or~~ unsecured, secured either on a ~~pari passu~~ first lien “equal and ratable” basis with the other Facilities or on a “junior” ~~basis to the other Facilities~~basis, in each case over the same ~~(or less)~~ Collateral that secures the Facilities (and in each case, the ~~case~~ application of any proceeds of the Collateral securing such ~~junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or~~ New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the ~~Incremental Arranger and, if such Incremental Arranger is not the~~ Administrative Agent, ; it being understood that the Intercreditor Agreement is reasonably satisfactory to the Administrative Agent), (ii) the New Term Facility ~~or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and~~ shall share ratably in any ~~event no more favorably than)~~ prepayments of the Term ~~Facility~~ Loans pursuant to Section 2.05 (or ~~Revolving Credit Facility, as~~ otherwise provide for more favorable prepayment treatment for the ~~case may be, unless the Borrowers otherwise elect (but in any event no more favorably~~ then outstanding Term Loan Tranches than the ~~existing~~ Term Loans ~~or Revolving Credit Loans, as applicable),~~ under such New Term Facility) and (iii) ~~with respect~~ the all-in yield (whether in the form of interest rate margins, original issue discount, upfront fees, or Eurocurrency Rate or Base Rate floors (but not arrangement or underwriting fees paid to ~~any Dollar~~arrangers for their own account) and equating original issue discount and upfront fees to interest rate for purposes of this calculation, assuming a four-~~denominated, floating rate~~ year life to maturity) applicable to such pari passu New Term Facility ~~that is pari passu in right~~ of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility like currency shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 50 basis points higher than the corresponding ~~All~~all-in ~~Yield payable by~~ yield (giving effect to interest rate margins, original issue discount, upfront fees and Eurocurrency Rate and Base Rate floors, in the ~~Borrowers~~ case of original issue discount and upfront fees calculated as provided in the preceding parenthetical) for any corresponding Term Loan Tranche, in the ~~InitialTranche B~~ case of Euro Term Loans, incurred on the Fourth Amendment Effective Date or, in the case of Term Loans denominated in Dollars, incurred on the Sixth Amendment Effective Date, unless the ~~All~~all-in ~~Yield~~ yield with respect to ~~the InitialTranche B~~ each applicable Term ~~Loans~~ Loan Tranche is increased to the amount necessary so that the difference between the ~~All~~all-in ~~Yield~~ yield with respect to such New Term Facility and the corresponding ~~All~~all-in ~~Yield~~ yield on ~~the InitialTranche B~~ such applicable Term ~~Loans~~ Loan Tranche is equal to 75 50 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o.

Appears in 1 contract

Sources: Credit Agreement (Axalta Coating Systems Ltd.)

Incremental Facilities. (a) The ~~Borrowers may,~~ Company may at any time and from time to ~~time after the Closing Date~~time, ~~upon notice~~ by ~~the Parent Borrower~~ delivery to the ~~Person appointed~~ Administrative Agent of a written notice signed by a Responsible Officer of the ~~Borrower to arrange~~ Company, request the addition of a new tranche of term loans (an ~~incremental Facility~~ “Incremental Term Facility”), a new tranche of revolving loans (~~such Person (who (i) may be~~ an “Incremental Revolving Tranche Facility” and, together with the ~~Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower)~~Incremental Term Facility, the “Incremental ~~Arranger~~Facilities”), an increase in the Aggregate Revolving Credit Commitments (an “Incremental Revolving Increase”), an increase in the Aggregate Revolving Euro Tranche Commitments (an “Incremental Euro Tranche Increase”), an increase in the Aggregate Revolving Yen Tranche Commitments (an “Incremental Yen Tranche Increase” and, together with the Incremental Revolving Increases and the Incremental Euro Tranche Increases, the “Incremental Increases”) ~~specifying~~ or a combination thereof in an aggregate principal amount for all such Incremental Facilities and Incremental Increases incurred after the ~~proposed amount thereof and~~ Effective Date not exceeding, at any time of determination, the ~~proposed currency denomination thereof, request~~ sum of (i) an ~~increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed~~ amount equal 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 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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) the greater of (A) $~~100,000,000~~ 750,000,000 and (B) ~~Consolidated~~ 75% of EBITDA for the most recently ended ~~four fiscal quarter period~~ Test Period for which ~~internal~~ financial statements ~~are available~~ have been delivered pursuant to subsection 7.1(a) or (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 1.10b) (the “~~Cash-Capped~~ Incremental ~~Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility~~Fixed Amount Basket”) ~~so long as~~ minus the ~~Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an~~ aggregate principal amount ~~equal to (i)(A)~~ of all ~~voluntary prepayments of (1) Term Loans made~~ additional Indebtedness issued or incurred pursuant to ~~Section 2.05(a~~subsection 8.2(e)(i) or (e)(ii) outstanding at the time of the effectiveness of the applicable Incremental Facility or Incremental Increase (but solely to the extent such additional Indebtedness was issued or incurred in reliance on the Incremental Equivalent Fixed Amount Basket, or any refinancing or replacement of any such Indebtedness in accordance with subsection 8.2(e)(ii)) and (2ii) ~~New~~ the maximum amount which may be incurred in order for the Consolidated Senior Secured Leverage Ratio (after giving pro forma effect to such incurrence and all other transactions to be consummated in connection therewith (including the incurrence or assumption of other Indebtedness)) to remain less than or equal to 3.50 to 1.00; provided that, subject to the provisions in subsection 2.6(e) below, at the time of any such request and upon the effectiveness of the Incremental ~~Notes that are secured on a pari passu basis with the Term Loans~~ Facility Amendment referred to below, (A) no Default or Event of Default shall exist, and (B) ~~all repurchases~~ the Company shall be in Pro Forma Compliance; provided, further, that for purposes of ~~(1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans,~~ clause (ii) ~~voluntary prepayments~~ of ~~all other Indebtedness secured by a Lien that is pari passu with~~ this sentence and clause (B) in the ~~Liens securing~~ proviso immediately above, in the ~~Obligations~~ case of an Incremental Revolving Tranche Facility or an Incremental Increase, the Consolidated Senior Secured Leverage Ratio and ~~(iii) voluntary prepayments of~~ the Financial Covenants shall be calculated as if such Incremental Revolving Tranche Facility or Incremental Increases were fully drawn but using only the actual Total Revolving Credit ~~Loans made pursuant to Section 2.05(a) to~~ Outstandings (and not the ~~extent accompanied by a corresponding, permanent reduction in~~ amount of 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including Commitments) under the Revolving Credit Facility)) , the actual Total Revolving Euro Tranche Outstandings (and ~~in the case of any such prepayment or repurchase at a price below par, based on~~ not the amount of the ~~actual cash expenditure~~ Revolving Euro Tranche Commitments) under the Revolving Euro Tranche Facility or the Outstanding Amount of all Revolving Yen Tranche Loans (and not the ~~“Prepayment-Based~~ amount of the Revolving Yen Tranche Commitments) under the Revolving Yen Tranche Facility, as the case may be, in effect immediately prior to the closing of such Incremental ~~Facility”~~Revolving Tranche Facility or Incremental Increase and for the purpose of computing the usage of the basket in clause (i) ~~(such sum, at any such time~~of this sentence, the “aggregate amount of outstanding Incremental ~~Amount”~~Facilities incurred solely in reliance on clause (ii) of this sentence shall be disregarded. In calculating the amount of Indebtedness permitted to be incurred pursuant to clause (i) or clause (ii) of the immediately preceding sentence, the Company may elect to incur Indebtedness pursuant to clause (ii) before using the basket in clause (i)~~; provided that~~ . If both amounts are available and the Company does not make an election, the Company will be deemed to have incurred such Indebtedness pursuant to clause (ii). The Company may not reclassify any Indebtedness incurred pursuant to such ~~request for an increase~~ clause (i) or clause (ii) after the incurrence thereof. (b) Each Incremental Term Facility shall be in ~~a minimum~~ an aggregate principal amount ~~of the lesser of~~ not less than $50,000,000, each Incremental Revolving Tranche Facility and each Incremental Revolving Increase shall be in an aggregate principal amount not less than $25,000,000 (~~x) $5,000,000~~ or, in the case of any ~~New Loan Commitments~~ Incremental Revolving Tranche Facility denominated in an Alternative Currency, the Alternative Currency Equivalent in such Alternative Currency of ~~such amount~~$25,000,000), 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 each Incremental ~~Notes issued pursuant to Section 2.15: (A) the Borrowers~~ Euro Tranche Increase shall be ~~deemed to have used amounts under~~ in an aggregate principal amount not less than the ~~Prepayment-Based~~ Alternative Currency Equivalent in Euro of $25,000,000 and each Incremental ~~Facility, if any, prior to utilization of the Cash-Capped Incremental Facility, and the Borrowers~~ Yen Tranche Increase shall be ~~deemed to have used~~ in an aggregate principal amount not less than the ~~Ratio-Based~~ Alternative Currency Equivalent in Yen of $10,000,000. (c) Each Incremental Facility (i) shall rank pari passu or junior (except in the case of any obligation thereunder of a Designated Borrower that is a Foreign Subsidiary, which would be senior as a result of such Designated Borrower not guaranteeing or providing collateral security for the Revolving Credit Loans, the Term A-1 Loans, the Term A-2 Loans, the Revolving Euro Tranche Loans and the Revolving Yen Tranche Loans) in right of payment and of security with the Revolving Credit Loans, the Term A-1 Loans, the Term A-2 Loans, the Revolving Euro Tranche Loans and the Revolving Yen Tranche Loans and shall contain provisions as to the ~~extent compliant therewith~~requirement that any Lien thereunder on an property also granted to or held by the Administrative Agent under any Loan Document shall be released on any Collateral/Covenant Release Date as provided herein, (ii) ~~prior~~ in the case of an Incremental Revolving Tranche Facility, shall not mature earlier than (and shall not have scheduled commitment reductions occurring before) the Termination Date with respect to ~~utilization of~~ the ~~Cash-Capped Incremental~~ Revolving Credit Facility, the Revolving Euro Tranche Facility ~~and~~ or the ~~Prepayment-Based Incremental~~ Revolving Yen Tranche Facility, (Biii) ~~New Loan Commitments pursuant to this Section 2.14 and New~~ in the case of an Incremental ~~Notes pursuant to Section 2.15 may be incurred under~~ Term Facility, shall not mature nor have a Weighted Average Life that is earlier than the ~~Ratio-Based Incremental Facility (~~Termination Date with respect to the ~~extent compliant therewith)~~Term A-1 Facility or, if later, the ~~Cash-Capped~~ latest Termination Date with respect to any Incremental Term Facility ~~and the Prepayment-Based Incremental Facility, and proceeds from any~~ outstanding at such ~~incurrence may be utilized in a single transaction by first calculating the incurrence under the Ratio- Based Incremental Facility~~ time (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to ~~any New Loan Commitments~~this clause (iii), ~~the Borrowers must provide to the Administrative Agent~~ (xA) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the ~~Parent Borrower~~Company, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any ~~New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000~~Permitted Bridge Indebtedness, (B) ~~has~~ so long as such Incremental Term Facility is not incurred under the Incremental Fixed Amount Basket, the Company may incur Incremental Term Facilities with a ~~final~~ maturity and/or Weighted Average Life that is less than the Term A-1 Loans or, if later, the latest Termination Date with respect to any Incremental Term Facility outstanding at such time in an aggregate amount after the Effective Date not to exceed the greater of (A) $400,000,000 and (B) 40% of EBITDA for the most recently ended Test Period for which financial statements have been delivered pursuant to subsection 7.1(a) or (b), and (C) in determining the latest Termination Date in respect of any Term Facility for purposes of this clause (iii), any Term Facility outstanding with a stated maturity date later than ~~one~~ the five year anniversary of the incurrence of such Term Facility shall be disregarded), (iv) in the case of an Incremental Term Facility, for purposes of rights to payment, prepayments and voting, shall be treated no more favorably than the existing Term A-1 Loans and (v) shall not contain additional or different covenants or financial covenants which are materially more restrictive than the covenants herein on the Effective Date or the Financial Covenants unless (x) the Lenders under the existing Loans also receive the benefit of such more restrictive terms (it being understood to the extent that any covenant is added for the benefit of any such Indebtedness, no consent shall be required from the Administrative Agent or any Lender to the extent that such covenant is also added for the benefit of any corresponding existing Loans), (y) any such provisions apply after the ~~Latest Maturity~~ latest Termination Date applicable to outstanding Loans at such time, or (z) such terms shall be reasonably satisfactory to the Administrative Agent and the Company (provided that a certificate of a Responsible Officer delivered to the Administrative Agent in connection therewith, together with a reasonably detailed description of the ~~then o~~material terms and conditions of such resulting Indebtedness or copies of the principal documentation relating thereto, stating that the Company has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Company within fifteen (15) Business Days that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)). Any such notice shall set forth the amount and terms of the relevant Incremental Facility or Incremental Increases requested by the Company and to be agreed by any Lenders or Additional Lenders (as herein defined) under such Incremental Facility or providing any portion of such Incremental Increase. (d) The Company may arrange for one or more banks or other financial institutions, each of which shall be reasonably satisfactory to the Administrative Agent and the Company and, with respect only to Incremental Revolving Increases, the Swing Line Lender, the L/C Issuers and the Alternative Currency Funding Fronting Lender, and, with respect only to Incremental Euro Tranche Increases, the Swing Line Euro Tranche Lender (any such bank or other financial institution being called an “Additional Lender”), to extend commitments under the Incremental Facility or provide a portion of the Incremental Increase, and no Lender shall be required to provide a portion of any such Incremental Facility or provide a portion of any such Incremental Increase. Commitments in respect of Incremental Facilities or any Incremental Increases shall become Commitments under this Agreement, and each Additional Lender shall become a Lender under this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Company, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents to the extent (but only to the extent) necessary to effect the provisions of this Section. Subject to subsection 2.6(e) below, effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in subsection 6.2 (it being understood that all references to “the date of such Borrowing” in such subsection 6.2 shall be deemed to refer to the effective date of such Incremental Facility Amendment) and the delivery of customary legal opinions. The proceeds of the Incremental Facilities or the Incremental Commitments will be used for working capital and other general corporate purposes. (e) In the case of any Incremental Term Facility the proceeds of which are to be used to finance a substantially concurrent Limited Conditionality Acquisition, to the extent requested by the Company and agreed by the Administrative Agent and the Lenders and the Additional Lenders providing such Incremental Facility, notwithstanding anything in this subsection 2.6 or subsection 6.2 to the contrary, the following provisions shall apply: (i) any condition to the effectiveness of the Incremental Facility Amendment with respect to such Incremental Term Facility or to the funding of the Credit Extensions under such Incremental Term Facility which will be used to consummate such Limited Conditionality Acquisition that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of such Incremental Facility Amendment or the funding of such Credit Extensions may be limited by customary “SunGard” or other customary applicable “certain funds” conditionality provisions, so long as all such representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects, at the time of the execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Limited Conditionality Acquisition; (ii) the satisfaction of any condition to the effectiveness of the Incremental Facility Amendment with respect to such Incremental Term Facility or to the funding of the Credit Extensions under such Incremental Term Facility which will be used to consummate such Limited Conditionality Acquisition that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Incremental Facility Amendment or the funding of such Credit Extensions (or after giving effect to such Credit Extensions) shall be determined (before and after giving effect to such Limited Conditionality Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness)) on the date of the execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Limited Conditionality Acquisition (so long as no Event of Default under any of subsections 9(a) or (f) shall have occurred and be continuing at the time of the consummation of such Limited Conditionality Acquisition or would result therefrom); and (iii) the satisfaction of any condition set forth in clause (ii) of subsection 2.6(a) or clause (B) of the proviso set forth in subsection 2.6(a) shall be determined (after giving effect to such Limited Conditionality Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness)) on the date of the execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Limited Conditionality Acquisition.

Appears in 1 contract

Sources: Credit Agreement (Graphic Packaging International, LLC)

Incremental Facilities. (a) ~~The~~ At any time, at the option of Borrowers ~~may, from time to time after the Closing Date, upon notice by the Parent Borrower~~ (but subject to the ~~Person appointed by the Borrower to arrange an incremental Facility~~ conditions set forth in clause (~~such Person (who (i~~b) ~~may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower~~below), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Revolver Commitments and the ~~Term Commitment Increase, the “New Loan Commitments”) in~~ Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the ~~sum of~~ Available Increase Amount (x) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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 each such increase, an “~~Consolidated EBITDA” and Section 1.10) (the “Cash-Capped Incremental Facility~~Increase”). Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by B▇▇▇▇▇▇▇▇, ~~(y)~~ and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an ~~unlimited~~ amount (of at least $5,000,000 and integral multiples of $5,000,000 in excess thereof. In no event may the ~~“Ratio-Based Incremental Facility”) so long as~~ Revolver Commitments and the Maximum ~~Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal~~ Revolver Amount be increased pursuant to ~~(i)(A) all voluntary prepayments of~~ this Section 2.14 on more than one (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excludingoccasion during any calendar quarter. Additionally, for the avoidance of doubt, ~~proceeds~~ it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolver Commitments exceed $50,000,000. (b) Each of the following shall be conditions precedent to any ~~revolving credit facility~~ Increase of the Revolver Commitments and the Maximum Revolver Amount in connection therewith: (~~including~~ i) Agent or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such Lenders (or prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party, (ii) each of the conditions precedent set forth in Section 3.2 are satisfied, (iii) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Federal Reserve Board, (iv) Borrowers have delivered to Agent updated pro forma Projections (after giving effect to the applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (on a month-by-month basis) immediately following the proposed date of the applicable Increase (calculated as if a Covenant Testing Period was in effect during the entire twelve month period), and (v) Borrowers shall have reached agreement with the Lenders (or prospective lenders) agreeing to the increased Revolver Commitments with respect to the interest margins applicable to Revolving ~~Credit Facility~~Loans to be made pursuant to the increased Revolver Commitments (which interest margins may be with respect to Revolving Loans made pursuant to the increased Revolver Commitments, higher than or equal to the interest margins applicable to Revolving Loans set forth in this Agreement immediately prior to the date of the increased Revolver Commitments (the date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount, the “Increase Date”)) and ~~in the case of any such prepayment or repurchase at a price below par, based on~~ shall have communicated the amount of such interest margins to Agent. Any Increase Joinder may, with the ~~actual cash expenditure~~ consent of Agent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary to effectuate the provisions of this Section 2.14. (c) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the increased Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.14. (d) Each of the Lenders having a Revolver Commitment prior to the Increase Date (the “~~Prepayment~~Pre-~~Based Incremental Facility~~Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such ~~sum~~Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at ~~any~~ the principal amount thereof, such ~~time,~~ interests in the ~~“Incremental Amount”); provided that any~~ Revolving Loans and participation interests in Letters of Credit on such ~~request for an increase~~ Increase Date as shall be necessary in ~~a minimum amount~~ order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of ~~the lesser of~~ Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments. (xe) ~~$5,000,000 or~~The Revolving Loans, ~~in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount~~Revolver Commitments, 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~~ Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and ~~New Incremental Notes issued pursuant to Section 2.15: (A) the Borrowers~~ Maximum Revolver Amount under, and shall be ~~deemed~~ entitled to ~~have used amounts under~~ all the Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14benefits afforded by, this Agreement and the other Loan ~~Documents may be amended in a writing (which may be executed~~ Documents, and ~~delivered~~ shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the ~~Incremental Arranger (~~Liens and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered security interests granted 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~~ Documents continue to be ~~applied to increase such installments ratably in accordance with~~ perfected under the ~~amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase~~ Code or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist otherwise 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case establishment of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (new Revolver Commitments and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oMaximum Revolver Amount.

Appears in 1 contract

Sources: Credit Agreement (Tessco Technologies Inc)

Appears in 1 contract

Sources: Credit Agreement (Avis Budget Group, Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (such Person (who may be (i) ~~may be~~ the Administrative Agent, if it so ~~agrees,~~ agrees or (ii) any other Person appointed by the ~~Parent Borrower~~Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in ~~the Commitments under~~ any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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)~~hereunder) (each, a “~~Term~~ Commitment Increase”), (iii) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (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 (ivii) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New ~~Term~~ Facility”; and any advance made by a Lender thereunder, a “New ~~Term~~ Loan”; and the commitments thereof, the “New ~~Term 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 (xw) the greater of (A) $~~100,000,000~~ 70,000,000 and (B) 100% of Four Quarter Consolidated ~~EBITDA for~~ EBITDA, minus the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ amount incurred prior to the date of incurrence thereof under the First Lien Cash-Capped Incremental Amount (and ~~after giving effect to any acquisition consummated concurrently therewith on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent~~ not reclassified in accordance with the ~~definition~~ provisions of ~~“Consolidated EBITDA” and Section 1.10~~the First Lien Credit Agreement) (the “Cash-Capped Incremental Facility”), (yx) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum ~~Leverage / Minimum Interest Coverage~~ Ratio-Based Requirement is satisfied and (zy) an amount equal to (~~i)(A~~i) all voluntary prepayments and all repurchases and/or cancellations of (a) long term Indebtedness that is secured on a pari passu basis with the First Lien Loans or the Loans and (b) solely to the extent incurred under the Cash-Capped Incremental Amount or the First Lien Cash-Capped Incremental Amount, long term Indebtedness that is unsecured or secured on a junior basis to the Loans and (ii) all voluntary prepayments of (1a) ~~Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes~~ revolving credit loans that are secured on a pari passu basis with the ~~Term~~ First Lien Loans or the Loans and (Bb) ~~all repurchases of (1) Term Loans made pursuant~~ solely to the ~~terms hereof and (2) New~~ extent incurred under the Cash-Capped Incremental ~~Notes~~ Amount or the First Lien Cash-Capped Incremental Amount, revolving credit loans that are unsecured or secured on a ~~pari passu~~ junior basis ~~with~~ to the ~~Term~~ Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) in each case, to the extent accompanied by a corresponding, permanent reduction in the ~~Revolving Credit Commitments pursuant to Section 2.06(a~~applicable revolving credit commitment, and in the case of each of clauses (i) and (ii), in ~~each case~~an amount equal to the face amount of the principal amount voluntarily prepaid, repurchased and/or cancelled and to the extent not funded with the proceeds of (1) long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit ~~Facility~~Facility (as defined in the First Lien Credit Agreement)) ~~and~~ or (2) any Asset Sale to the extent the assets subject to such Asset Sale constitute Collateral or Casualty Event in ~~the case~~ respect of any ~~such prepayment~~ Collateral (or ~~repurchase at a price below par, based on the amount~~ series of ~~the actual cash expenditure~~ related Asset Sales or Casualty Events) (the “Prepayment-Based Incremental Facility”) (such sum, at any such ~~time~~time and subject to Section 1.02(i), the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New ~~Loan~~ Commitments denominated in ~~an Alternative Currency~~a foreign currency, the ~~Alternative Currency Equivalent of~~ equivalent principal amount thereof then outstanding in such ~~amount~~foreign currency, converted to Dollars in accordance with Section 1.08, 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~~ Equivalent Debt incurred pursuant to Section ~~2.15:~~ 2.15:‌ (A) At the ~~Borrowers~~ Borrower’s option, 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 Borrowers shall be deemed to have used~~ the Ratio-Based Incremental Facility (to the extent compliant therewith) ), prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility, and the Borrower shall be deemed to have used the Prepayment-Based Incremental Facility prior to utilization of the Cash-Capped Incremental ~~Facility and the Prepayment-Based Incremental~~ Facility, (B) New ~~Loan~~ Commitments pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by or series of related transactions by, at the Borrower’s option, first calculating the incurrence under the ~~Ratio-~~ Ratio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental ~~Facility~~Facility or any amounts substantially concurrently incurred under Section 7.01 (other than any Ratio Debt or Ratio Acquisitions Debt incurred pursuant to Section 7.01) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ utilized pursuant to the Cash-Capped Incremental Facility) ~~and/or~~ and then calculating the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o,

Appears in 1 contract

Sources: Second Lien Credit Agreement

Incremental Facilities. (a) The Borrowers ~~may~~may (on a joint and several basis), from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower Representative to the ~~Person appointed by the Borrower to arrange an incremental Facility (such Person~~ Administrative Agent (who ~~(i) may be~~ shall promptly notify the ~~Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”~~applicable Lend- ers) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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~~ ex- cept 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 ~~revolving credit~~ term loan 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice 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~~Com- mitment” and together with the Revolving Credit Commitment ~~Increase, the New Revolving Commitments~~ Increase and the Term Commitment Increase, the “New Loan Commitments”) in by an amount not to exceed ~~the sum of~~ (x) ~~the greater~~ a Dollar Amount of ~~(A)~~ $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) 400,000,000 (the “Cash-Capped Incremental Facility”), ) plus (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the ~~Maximum~~ Maxi- mum First Lien Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such ~~sum~~amount, at any such time, the “Incremental Amount”); ~~provided~~ pro- vided that (i) no Event of Default would exist after giving effect to any such request and (ii) any such request for an increase shall be in a minimum amount of the lesser of (x) a Dollar Amount of $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ 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~~ Com- mitments 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~~2.17, ~~if any, prior to utilization of the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used~~ will count towards the Ratio-Based Incremental Facility ~~(to the extent compliant therewith)~~ prior to ~~utilization of~~ reducing the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence maximum amount under the Cash-Capped Incremental ~~Facility,~~ Facilities (C) to the ~~Borrowers may redesignate all or any portion~~ extent permitted by the pro forma calculation of ~~Indebtedness originally designated as incurred under~~ the ~~Cash-Capped Incremental Facility or~~ First Lien Net Leverage Ratio re- quired prior to the ~~Prepayment-Based Incremental Facility as having been incurred under the~~ incurrence of such Ratio-Based Incremental ~~Facility so long as, at~~ Facility). At the time of sending such ~~redesignation~~notice to the applicable Lenders, the ~~Borrowers would be permitted~~ Borrower Representative (in consultation with the Administrative Agent) shall specify the time period within which each applicable Lender is requested to ~~incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility~~ respond (which, ~~for~~ unless the ~~avoidance of doubt~~Administrative Agent otherwise agrees, shall ~~have~~ in no event be less than ten Business Days from the ~~effect~~ date of ~~increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility, as applicable, by the amount~~ delivery of such ~~redesignated Indebtedness~~notice); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds. (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 ~~to participate in any New Loan Commitments~~ may elect or decline, in its sole discretion, to ~~participate in~~ 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 issu- ance of New Term Facility, as applicable, 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, each L/C Issuer and the Swing Line Lender (~~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~~ consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed) to become Lenders pursuant to a joinder agreement to this ~~Agreement. Neither the Administrative Agent nor the Collateral Agent (~~Agree- ment in ~~their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14~~ form 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 Borrowers must provide~~ substance reasonably satisfactory to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestAgent. (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~~ Loan 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,~~ in- crease or New Term ~~Facility or New Revolving~~ Facility among the applicable Lenders. The ~~Incremental Arranger~~ Administrative Agent shall promptly notify the applicable Lenders of the final allocation of such ~~increase,~~ increase or New Term ~~Facility or New Revolving~~ Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term ~~Facility or New Revolving~~ Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the ~~Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)~~Administrative Agent) in order to ~~establish~~ es- tablish the New Term ~~Facility or New Revolving~~ Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date~~, in the case of an increase to an existing Term Loan Tranche~~, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in 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)~~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~~ imme- diately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or ~~addition~~ addi- tion of New Term ~~Facility or New Revolving~~ Facility pursuant to this Section 2.14, (i) no Event of Default ~~(subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i))~~ would exist after giving effect to such increase; , (ii) ) (A) in the case of any increase of the Revolving Tranche, (1) the final maturity shall be the same as the Maturity Date applicable to the Revolving Credit Facility, (2) no amortization or mandatory commitment ~~reduction~~ re- duction 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) other than with respect to any Extendable Bridge Loans~~increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans or Specified Refinancing Term Loans in- creased 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 (C) in the case of any New Term Facility, such New Term Facility shall have a final maturity no earlier than the then Latest Maturi- ty 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 B Facility 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 and/or Section 6.16 with respect to Holdings, the Borrowers, all Material Subsidiary Guarantors and each other Sub- sidiary Guarantor that is organized in a jurisdiction for which local counsel to the Administrative Agent in such ju- risdiction 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 ▇▇▇▇▇- ▇▇▇▇ to each such increase or New Term Facility shall be agreed to by the Lenders providing such increase or New Term Facility, as applicable, and the Administrative Agent and the Borrowers; provided, further, in connection with the incurrence of any New Term Loans, if the proceeds of such New Term Loans 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 Acquisition, then (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 Repre- sentations and (y) such of the representations and warranties made by or on behalf of the applicable acquired com- pany 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) no Event of Default under Sections 8.01(a), (f) or (g) would exist after giving effect to such incurrence (“Permitted Acquisition Provisions”). (e) On the Increase Effective Date with respect to ~~an increase to an existing~~ 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 the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will ~~automatically~~ automati- cally and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s participations hereunder in outstanding L/C ~~Obligations~~ 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) participations ~~hereunder~~ hereun- der in L/C ~~Obligations represented~~ Advances and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase ~~Lender~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), 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~~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~~ payment, have the ~~other Facilities, not be Guaranteed by any Person that is not a Borrower or Guarantor under each of the other Facilities~~same guarantees as, and be ~~unsecured or~~ unsecured, secured either on a ~~pari passu~~ first lien “equal and ratable” basis with the other Facilities or on a “junior” ~~basis to the other Facilities~~basis, in each case over the same ~~(or less)~~ Collateral that secures the Facilities (and in each case, the ~~case~~ application of any pro- ceeds of the Collateral securing 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 rea- sonably satisfactory to the Administrative Agent; it being understood that the Intercreditor Agreement is reasonably satisfactory to ~~the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent,~~ the Administrative Agent), (ii) the New Term Facility ~~or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and~~ shall share ratably in any ~~event no more favorably than)~~ prepayments of the Term ~~Facility~~ Loans pursuant to Section 2.05 (or ~~Revolving Credit Facility, as~~ otherwise provide for more favorable prepayment treatment for the ~~case may be, unless the Borrowers otherwise elect (but in any event no more favorably~~ then outstanding Term Loan Tranches than the ~~existing~~ Term Loans ~~or Revolving Credit Loans, as applicable),~~ under such New Term Facility) and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the ~~date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All~~all-in ~~Yield payable by~~ yield (whether in the ~~Borrowers~~ form of interest rate margins, original issue discount, upfront fees, or Eurocurrency Rate or Base Rate floors (but not arrangement or underwriting fees paid to arrangers for their own account) and equating original issue discount and upfront fees to interest rate for purposes of this calculation, assuming a four-year life to maturity) applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 50 basis points higher than the corresponding ~~All~~all-in ~~Yield payable by~~ yield (giving effect to interest rate margins, original issue discount, upfront fees and Eurocurrency Rate and Base Rate floors, in the ~~Borrowers~~ case of original issue discount and upfront fees calculated as provided in the preceding parenthetical) for any Term Loan Tranche incurred on the ~~InitialTranche B Term Loans~~Closing Date, unless the ~~All~~all-in ~~Yield~~ yield with respect to ~~the InitialTranche B~~ each applicable Term ~~Loans~~ Loan Tranche is increased to the amount necessary so that the difference between the ~~All~~all-in ~~Yield~~ yield with respect to such New Term Facility and the corresponding ~~All~~all-in ~~Yield~~ yield on ~~the InitialTranche B~~ such applicable Term ~~Loans~~ Loan Tranche is equal to 75 50 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o.

Appears in 1 contract

Sources: Credit Agreement

Incremental Facilities. (a) ~~The Borrowers~~ A Borrower may, ~~from time to time after the Closing Date, upon~~ by written notice by the Parent Borrower to the ~~Person appointed by the Borrower~~ Administrative Agent, elect to ~~arrange an incremental Facility (such Person (who~~ request, from time to time, on one or more occasions, (i) ~~may be~~ the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 establishment of one or more new term loan ~~facilities~~commitments (by way of adding one or more new term loan facilities and/or increasing the term loans under an existing term loan facility prior to its maturity date) (the “New Term Commitments”) and/or (ii) the establishment of one or more new revolving commitments (by way of adding one or more revolving credit facilities and/or increasing any existing Class of Revolving Commitments prior to their applicable Maturity Date) denominated in dollars or an Alternative Currency (the “New Revolving Commitments” and, together with the New Term Commitments, the “New Commitments”), in each case, to the extent agreed by the Persons providing the same, in a principal amount (A) not less than the Dollar Equivalent of $50,000,000 individually (or such ~~currency~~ lesser amount which shall be reasonably approved by the Administrative Agent or ~~currencies as~~ that shall constitute the ~~Parent Borrower identifies~~ remaining available amount of New Commitments permitted to be established pursuant to and in ~~such notice (each~~accordance with this Section 2.24(a)), ~~a “New Term Facility”;~~ and ~~any advance made by a Lender thereunder, a “New Term Loan”; and~~ integral multiples of the ~~commitments~~ Dollar Equivalent of $5,000,000 in excess thereof, and (B) not to exceed, for all New Commitments established pursuant to this Section 2.24(a) after the ~~“New Term Commitment” and together with~~ Fifteenth Amendment Effective Date (other than amounts incurred pursuant to the ~~Revolving Credit Commitment Increase~~Ratio-Based Prong), an aggregate amount equal to the sum of the Dollar Equivalent of (1) (X) prior to the Hurricane Acquisition Closing Date, the ~~New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) in an amount not to exceed the sum~~ greatest of (x) ~~the greater~~ $2,710,000,000, (y) 10.50% of ~~(A) $100,000,000~~ Total Assets and (Bz) 85.0% of Consolidated ~~EBITDA~~ Cash Flow for the most recently ended ~~four fiscal quarter period for which internal financial statements are available~~ Test Period (calculated on a pro forma basis), and (Y) on 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~~ Hurricane Acquisition Closing Date, the greatest of ~~“Consolidated EBITDA” and Section 1.10~~(x) ~~(the “Cash-Capped Incremental Facility”)~~$4,500,000,000, (y) 10.50% of Total Assets and (z) 85.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis) (this clause (1), the “Free and Clear Amount”), plus (2) amounts available under Section 6.01(b)(xxii) at such time (it being understood that usage of such amounts shall reduce availability under such basket on a dollar-for-dollar basis) (this clause (2), the “Reallocated Amount”), plus (3) the aggregate amount of any voluntary prepayment, redemption, repurchase or other retirement of Term Loans and/or any permanent reductions of the commitments under any Revolving Facility (including loan buybacks and open market purchases permitted under this Agreement and the other Loan Documents or termination from the “yank-a-bank” provisions, to the extent of the actual purchase price paid in cash) and/or the amount of any permanent prepayment of Indebtedness secured on a pari passu basis with the Guaranteed Obligations (this clause (3), the “Prepayment Amount”), plus (4) in the case of New Commitments that serve to effectively refinance, replace and/or extend the maturity of then-existing Term Loans, Revolving Commitments and/or Revolving Loans, an amount equal to the portion of such Term Loans, Revolving Commitments and/or Revolving Loans to be replaced with such New Commitments (this clause (4), the “Replacement Amount” and, the Replacement Amount, collectively with the Free and Clear Amount, the Reallocated Amount and the Prepayment Amount, the “Non-Ratio Based Prong”), in the case of the Prepayment Amount and the Replacement Amount, to the extent not funded or effected with any long term Indebtedness (other than revolving Indebtedness); provided that, any Borrower shall also have the right to obtain additional New Commitments without regard to the Non-Ratio Based Prong in an unlimited amount (the “Ratio-Based Prong” and, the Ratio-Based Prong, together with the Non-Ratio Based Prong, the “Maximum Incremental ~~Facility~~Amount”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loansas, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of this Ratio-Based Prong, on a pro forma basis after giving effect to the incurrence of such New Commitments incurred pursuant to this Section 2.24 or any ~~such prepayment or repurchase at a price below par~~Indebtedness incurred pursuant to Section 6.01(b)(xxiii), ~~based on~~ and the ~~amount~~ application of the ~~actual~~ proceeds thereof (without netting the cash ~~expenditure (the “Prepayment-Based Incremental Facility”) (such sum~~proceeds thereof, ~~at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or~~and, in the case of any New ~~Loan~~ Commitments ~~denominated~~ in ~~an Alternative Currency~~the form of New Revolving Commitments, Revolving Commitments and/or Revolving Loans, or revolving facilities or revolving commitments pursuant to Section 6.01(b)(xxiii) then being established, assuming a full drawing thereunder), (1) in the case of Indebtedness secured by a Lien on the Collateral that ranks pari passu with the Lien securing the Guaranteed Obligations, the ~~Alternative Currency Equivalent of such amount~~Consolidated First Lien Net Leverage Ratio would not exceed, on a pro forma basis, (X) prior to the Hurricane Acquisition Closing Date, 1.25:1.00, and (yY) on and after the Hurricane Acquisition Closing Date, 3.50:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure, the Consolidated First Lien Net Leverage Ratio (on a pro forma basis for such transaction and the incurrence of such Indebtedness) would not exceed the greater of (A) (X) prior to the Hurricane Acquisition Closing Date, 1.25:1.00, and (Y) on and after the Hurricane Acquisition Closing Date, 3.50:1.00, and (B) the ~~entire amount~~ Consolidated First Lien Net Leverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of ~~any increase~~ “Specified Transaction”), disposition or capital expenditure), (2) in the case of Indebtedness secured by a Lien on the Collateral that ~~may~~ ranks junior to the Lien securing the Guaranteed Obligations, the Consolidated Secured Net Leverage Ratio would not exceed, on a pro forma basis, (X) prior to the Hurricane Acquisition Closing Date, 1.75:1.00, and (Y) on and after the Hurricane Acquisition Closing Date, 4.00:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure, the Consolidated Secured Net Leverage Ratio (on a pro forma basis for such transaction and the incurrence of such Indebtedness) would not exceed the greater of (A) (X) prior to the Hurricane Acquisition Closing Date, 1.75:1.00, and (Y) on and after the Hurricane Acquisition Closing Date, 4.00:1.00, and (B) the Consolidated Secured Net Leverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure) and (3) in the case of unsecured Indebtedness or Indebtedness secured only by a Lien on assets that do not constitute Collateral either (A) the Consolidated Total Net Leverage Ratio would not exceed, on a pro forma basis, (X) prior to the Hurricane Acquisition Closing Date, 4.00:1.00, and (Y) on and after the Hurricane Acquisition Closing Date, 4.50:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure, the Consolidated Total Net Leverage Ratio (on a pro forma basis for such transaction and the incurrence of such Indebtedness) would not exceed the greater of (I) (X) prior to the Hurricane Acquisition Closing Date, 4.00:1.00, and (Y) on and after the Hurricane Acquisition Closing Date, 4.50:1.00, and (II) the Consolidated Total Net Leverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure) or (B) the Fixed Charge Coverage Ratio would be ~~requested~~ no less than, on a pro forma basis, 2.00:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure, the Fixed Charge Coverage Ratio (on a pro forma basis for such transaction and the incurrence of such Indebtedness) would be no less than the lesser of (I) 2.00:1.00 and (II) the Fixed Charge Coverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure), it being understood and agreed that, unless the Parent Borrower otherwise elects, availability under ~~this Section 2.14; provided~~the Ratio-Based Prong shall be deemed used prior to availability under the Free and Clear Amount, ~~further~~the Reallocated Amount, ~~that for purposes of any~~ the Prepayment Amount or the Replacement Amount to the maximum extent permitted thereunder. Any such New ~~Loan~~ Commitments established pursuant to this Section ~~2.14~~ 2.24(a) shall be subject to any restrictions thereon set forth in Sections 6.01 and 6.02. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the New ~~Incremental Notes issued pursuant~~ Commitments shall be effective, which shall be a date not less than five Business Days after the date on which such notice is delivered to ~~Section 2.15:~~ the Administrative Agent. Such New Commitments shall become effective as of such Increased Amount Date; provided that, (A) subject to Section 1.05, the ~~Borrowers shall~~ availability of any New Commitments will be ~~deemed~~ subject solely to ~~have used amounts under the Prepayment-Based Incremental Facility~~(I) no Event of Default existing on such Increased Amount Date immediately before or immediately after giving effect to such New Commitments (or, if ~~any, prior to utilization~~ the proceeds of the ~~Cash-Capped Incremental Facility~~loans made pursuant to such New Commitments are used to finance a Limited Condition Transaction, no Specified Event of Default existing on such Increased Amount Date immediately before or immediately after giving effect to such New Commitments, which may be waived by the lenders providing such New Commitments) and (II) the ~~Borrowers shall be deemed to have used~~ satisfaction on the ~~Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization~~ Increased Amount Date of the ~~Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility,~~ condition set forth in Section 4.01(d); (B) the New ~~Loan~~ Commitments shall be effected pursuant to ~~this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under~~ one or more Joinder Agreements executed by the ~~Ratio-Based Incremental Facility (to the extent compliant therewith)~~Borrowers, the ~~Cash-Capped Incremental Facility~~ Lenders providing such New Commitments and the ~~Prepayment-Based Incremental Facility~~Administrative Agent, and ~~proceeds from any such incurrence may~~ each of which shall be ~~utilized~~ recorded 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, Register; (C) the ~~Borrowers may redesignate all or~~ applicable Borrower shall make any ~~portion of Indebtedness originally designated as incurred under~~ payments required pursuant to Section 2.16 in connection with the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental FacilityNew Commitments, as applicable~~, by the amount of such redesignated Indebtedness)~~; ~~provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C),~~ and (D) ~~solely for~~ the ~~purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio~~ applicable Borrower shall deliver or ~~the Consolidated Total Net Leverage Ratio~~ cause to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, each L/C Issuer (in each casebe delivered, to the extent the consent of any of the foregoing would be required to assign Revolving Credit Loans or Term Loans, as applicable, to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative ~~Agent upon request. (c) If (i) a Revolving Tranche~~ Agent, any customary and appropriate legal opinions or ~~a Term Loan Tranche is increased~~ other documents in ~~accordance~~ connection with ~~this Section 2.14 or (ii) a~~ any such transaction. Any New Term ~~Facility~~ Loans, New Revolving Commitments or New Revolving ~~Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date~~ Loans (~~the “Increase Effective Date”) and the final allocation of such increase~~other than any New Commitments, New Term ~~Facility or~~ Loans and New Revolving ~~Facility among~~ Loans provided by way of increasing the ~~applicable Lenders. The Incremental Arranger~~ principal amount of any existing term loan facility or existing revolving credit facility, as applicable) made on an Increased Amount Date shall ~~promptly notify the applicable Lenders~~ be designated as a separate Class of ~~the final allocation~~ Term Loans for all purposes 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~~ Documents. (b) On any Increased Amount Date on which ~~may be executed~~ New Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and ~~delivered by the Borrowers and the Incremental Arranger~~ conditions, (~~and~~ i) each of the Lenders ~~hereby authorize the any such Incremental Arranger~~ with Revolving Commitments shall assign to ~~execute~~ each Lender with a New Revolving Commitment (each, a “New Revolving Lender”) and ~~deliver any such documentation)) in order to establish~~ each of the New ~~Term Facility or New~~ Revolving ~~Facility or to effectuate~~ Lenders shall purchase from each of the ~~increases to the Term Loan Tranche or~~ Lenders with Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubtCommitments, at the ~~option of the Parent Borrower~~principal amount thereof (together with accrued interest), ~~with respect to any increase~~ such interests in the ~~Applicable Rate relating to any existing Term Facility to bring~~ Revolving Loans outstanding on such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) Increased Amount Date as shall be ~~amended~~ necessary in ~~writing (which may be executed~~ order that, after giving effect to all such assignments 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 datepurchases, such ~~aggregate amount to~~ Revolving Loans will be ~~applied to increase such installments~~ held by existing Lenders with Revolving Loans and New Revolving Lenders ratably in accordance with ~~the amounts in~~ their Revolving Commitments after giving effect ~~immediately prior~~ to the ~~Increase Effective~~ 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 loan made thereunder (a “New Revolving Loan”) shall be deemed, for all applicable purposes and as of the Increased Amount Date, a Revolving Loan and (iii) each New Revolving Lender shall become a Lender as of the Increased Amount Date with respect to its New Revolving Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Commitments of any Class are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Commitment (each, a “New Term Lender”) of any Class shall make a loan to the applicable Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such Class, and (ii) each New Term Lender of any Class shall become a Lender hereunder with respect to its New Term Commitment of such Class and the New Term Loans of such Class made by such Lender pursuant thereto. (d) ~~With~~ The Administrative Agent shall notify the Lenders promptly upon receipt of the Parent Borrower’s notice of each Increased Amount Date and in respect ~~to any Revolving Credit Commitment Increase, Term Commitment Increase or addition~~ thereof (i) the Class of New Term ~~Facility~~ Commitments and New Term Lenders of such Class or the Class of New Revolving ~~Facility pursuant to this Section 2.14~~Commitments and New Revolving Lenders of such Class, ~~(i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment~~as applicable, ~~Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase;~~ and (ii~~) (A~~) in the case of each notice to any ~~increase~~ Lender with Revolving Loans, the respective interests in such ▇▇▇▇▇▇’s Revolving Loans subject to the assignments contemplated by Section 2.24(b). (e) (A) any New Term Loans that are not provided by increasing the principal amount of any existing term loan facility may provide for the ability to participate (i) with respect to any voluntary prepayments, on a pro rata basis, greater than pro rata basis, or less than a pro rata basis with the then-outstanding Term Loans and (ii) with respect to any mandatory prepayments, on a pro rata basis (only in respect of New Term Loans that are pari passu with the then-outstanding Term Loans) or less than a pro rata basis with the then-outstanding Term Loans (and on greater than a pro rata basis with respect to prepayments of any such New Term Loans with the proceeds of Refinancing Term Loans) and (B) any New Revolving Loans and New Revolving Commitments that are not provided by increasing the principal amount of any existing revolving credit facility may provide for the ability to (i) participate with respect to Borrowings and mandatory repayments on a non pro rata basis with the then existing Revolving Loans and the Revolving Commitments and (ii) permanently repay and terminate the related revolving commitments on a non pro rata basis with the then existing Revolving Loans and the Revolving Commitments. (f) As of the ~~Revolving Tranche~~Increased Amount Date, (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) solely in the case of any New ~~Revolving Facility~~Term Loans and New Term Commitments provided by way of increasing the principal amount of any existing term loan facility, the terms, provisions and documentation of such New Term Loans and New Term Commitments shall be identical (1) other than with respect to upfront fees, original issue discount and arrangement, structuring or similar fees payable in connection therewith) to the applicable Term Loans being increased, in each case, as existing on such Increased Amount Date and (2) the terms and provisions of any ~~Extendable Bridge Loans~~other New Term Loans and the New Term Commitments (excluding pricing, fees, rate floors, maturity, or amortization terms and except as otherwise set forth herein or in the ~~final maturity shall be no earlier~~ applicable Joinder Agreement), other than such terms and provisions that (x) are applicable only after the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and then-existing Term Loans or (y) ifare conformed (or added) to the Loan Documents for the benefit of the Lenders of the then-existing Term Loans and the Administrative Agent, on as applicable, pursuant to an amendment hereto (with any such amendment being effected in consultation with the ~~date~~ Administrative Agent, but only requiring execution by the Borrowers) shall (A) reflect then-current market terms and conditions (taken as a whole) at the time of incurrence of such ~~increase~~New Term Loans (as reasonably determined by the Parent Borrower in good faith), ~~there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior~~ (B) not be materially more favorable to the ~~Increase Effective Date be prepaid from the proceeds~~ lenders or agent of ~~Revolving Credit Loans made hereunder (reflecting~~ such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional New Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term ~~Facility shall rank pari passu~~ Commitments, taken as a whole (as reasonably determined by the Parent Borrower in ~~right of payment with the other Facilities~~good faith), ~~not~~ or (C) be Guaranteed by any Person that is not a Borrower or Guarantor under each of the other Facilities, and be unsecured or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the ~~Incremental Arranger and, if such Incremental Arranger is not the~~ Administrative Agent; provided, ~~the Administrative Agent)~~however, (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, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then ot

Appears in 1 contract

Sources: Second Amended and Restated Credit Agreement (NRG Energy, Inc.)

Incremental Facilities. (a) The Borrowers ~~may,~~ may from time to time on or after the ~~Closing Date~~Spin-Off Date elect to increase the Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”) or obtain one or more tranches of (or increase any existing tranche of) term loans denominated in Dollars (each, ~~upon notice by~~ an “Incremental Term Loan”), in each case in an aggregate principal amount of not less than (x) $10,000,000, in the ~~Parent Borrower to~~ case of Increased Commitments, and (y) $20,000,000 (or such lesser amount as the ~~Person appointed by~~ Administrative Agent may reasonably agree), in the ~~Borrower to arrange an incremental Facility~~ case of Incremental Term Loans, so long as, after giving effect thereto, the aggregate amount of all such Increased Commitments and Incremental Term Loans (~~such Person (who~~ other than Refinancing Term Loans and Refinancing Revolving Commitments) does not exceed (i) may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (a “Revolving Credit Commitment Increase”), $300,000,000 plus (ii) an ~~increase in any Term Loan Tranche then outstanding (which shall be on~~ additional amount that would not cause 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 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (and after giving effect to any acquisition consummated concurrently therewith Senior Secured Net Leverage Ratio on a Pro Forma Basis ~~and all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.10)~~ (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, ~~proceeds of any revolving credit facility~~ after giving effect to such Increased Commitments or Incremental Term Loans (~~including~~ and the ~~Revolving Credit Facility~~immediately following provisos)) as of the last day of the most recently ended fiscal quarter at the end of which Financials were required to have been delivered pursuant to Section 5.01(a) or (b) to exceed 2.25 to 1.00; provided that, (x) with respect to any Increased Commitments, the maximum amount of Revolving Loans available to be drawn under such Increased Commitments shall be assumed to have been borrowed and (y) in each case, without giving effect to any incurrence under clause (i) above that is incurred substantially simultaneously with amounts under this clause (ii) less (iii) the aggregate principal amount of Incremental Equivalent Indebtedness previously incurred by the Borrowers and their Restricted Subsidiaries. The Borrowers may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Commitment or Extended Revolving Commitment, or to participate in such Incremental Term Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, a “New Lender”), to increase their existing Revolving Commitment or Extended Revolving Commitment, or to participate in such Incremental Term Loan, or extend Revolving Commitments or Extended Revolving Commitments, as the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”)may be; provided that ~~any such request for an increase shall be in a minimum amount of the lesser of~~ each New Lender (~~x) $5,000,000 or~~and, in the case of ~~any New Loan Commitments denominated in~~ an ~~Alternative Currency~~Increased Commitment, ~~the Alternative Currency Equivalent of such amount, and (y~~each Increasing Lender) 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~~ subject to ~~have used amounts under~~ the ~~Prepayment-Based Incremental Facility, if any, prior to utilization~~ approval of the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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 U.S. Borrower 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 (in each case~~, to the extent such consent would be required under Section 9.04 for an assignment to such New Lender, the Administrative Agent and, in the case of an Increased Commitment, each Issuing Bank and Swingline Lender (such consents not to be unreasonably withheld or delayed). Without the consent of any of Lenders other than the foregoing would be required to assign Revolving Credit Loans or Term Loans, as applicable, to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become relevant Increasing 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended ~~in a writing (which~~ pursuant to an Additional Credit Extension Amendment as may be ~~executed~~ necessary or appropriate, in the reasonable opinion of the Administrative Agent and ~~delivered~~ the applicable Borrower(s), to effect the provisions of this Section 2.19. Increases of Revolving Commitments and Extended Revolving Commitment and new Incremental Term Loans created pursuant to this Section 2.19 shall become effective on the date agreed by the ~~Borrowers~~ applicable Borrower(s), the Administrative Agent and the ~~Incremental Arranger (~~relevant Increasing Lenders or New Lenders and the ~~Lenders hereby authorize~~ Administrative Agent shall notify each Lender thereof. Notwithstanding the ~~any~~ foregoing, no increase in the Revolving Commitments or Extended Revolving Commitments or Incremental Term Loans shall be permitted under this paragraph unless (i) on the proposed date of the effectiveness of such increase in the Revolving Commitments or Extended Revolving Commitments or borrowing of such Incremental ~~Arranger~~ Term Loan, the conditions set forth in paragraphs (a) and (b) of Section 4.04 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to ~~execute~~ that effect dated such date and ~~deliver any such documentation~~executed by a Financial Officer of the applicable Borrower(s)~~) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases~~ ; provided, that to the extent agreed to by the Lenders providing such Increased Commitments or Incremental Term ~~Loan Tranche~~ Loans, as applicable, and the proceeds of such Increased Commitments or ~~Revolving Tranche and~~ Incremental Term Loans, as the case may be, are used to ~~reflect any technical changes necessary~~ finance a Permitted Acquisition or ~~appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower~~similar Investment, with respect to the condition set forth in Section 4.04(a), only the Specified Representations shall be required to be true and correct, and the condition set forth in Section 4.04(b) shall be limited to an Event of Default under clauses (a), (b), (h) or (i) of Article VII and (ii) other than in the case of Refinancing Term Loans or Refinancing Revolving Commitments, the U.S. Borrower shall be in compliance, calculated on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn), with the covenant contained in Section 6.09 as of the last day of the most recent fiscal quarter of the U.S. Borrower for which Financials have been delivered prior to such time. On the effective date of any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (Revolving Commitments or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Extended Revolving ~~Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14~~Commitments, (i) ~~no Event~~ each relevant Increasing Lender and New Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of ~~Default (subject~~ the other Lenders, as being required in order to ~~Section 1.02(i) in connection with any acquisition Investment~~cause, ~~Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist~~ after giving effect to such ~~increase; (ii) (A) in~~ increase and the ~~case~~ use of ~~any increase of the Revolving Tranche, (1) the final maturity shall be the same as the Maturity Date applicable~~ such amounts 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior make payments to such ~~increase will automatically and without further act be deemed to have assigned to~~ other Lenders, each ~~Lender providing a~~ Lender’s portion of the ~~increase~~ outstanding Loans of the applicable Lenders of such class to ~~the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”)~~equal its Applicable Percentage of such outstanding Loans, and ~~each such Revolving Commitment Increase Lender will automatically and without further act~~ (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (yii) if, on the date of such increase, there are any Revolving ~~Credit~~ Loans of the applicable Class outstanding, such Revolving ~~Credit~~ Loans shall on or prior to the ~~Increase Effective Date~~ effectiveness of such Increased Commitments be prepaid to the extent necessary from the proceeds of additional Revolving ~~Credit~~ Loans made hereunder ~~(reflecting~~ by the Increasing Lenders and New Lenders, so that, after giving effect to such ~~increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid~~ prepayments and any ~~costs incurred by~~ borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Loans of such Class owing to each Lender ~~in accordance~~ with a Revolving Commitment of such Class is equal to such Lender’s pro rata share (after giving effect to any nonratable Increased Commitment pursuant to this Section ~~3.06~~2.19) of all then outstanding Revolving Loans of such Class. The Administrative Agent and the Lenders hereby agree that the borrowing notice, 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~~ deemed payments made ~~under~~ pursuant to clause (ii) of the ~~Term Loan Tranche~~ second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan, shall be subject to ~~the increases shall be made~~ indemnification by the applicable ~~Lenders participating therein~~ Borrower pursuant to the ~~procedures~~ provisions of Section 2.15 if the deemed payment occurs other than on the last day of the related Interest Periods. The terms of any Incremental Term Loans shall be as set forth in ~~Sections 2.01 and 2.02 and on~~ the Additional Credit Extension Amendment providing for such Incremental Term Loans; provided that (i) the Weighted Average Life to Maturity of any Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans (without giving effect to any prepayments), (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the ~~making~~ Term B Loan Maturity Date, (iii) Incremental Term Loans shall not participate on a greater than pro rata basis with the applicable Term Loans in any mandatory prepayment hereunder (except in the case of ~~such new Term Loans~~incurrence of Refinancing Indebtedness in respect thereof), (iv) the provisions with respect to payment of interest, original issue discount and ~~notwithstanding anything to the contrary~~ upfront fees shall be as set forth in ~~Sections 2.01 and 2.02~~the amendment providing for such Incremental Term Loans; provided that, ~~such new Loans shall be added to (and form part of) each Borrowing~~ in the case of ~~outstanding~~ Incremental Term Loans ~~under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank~~ that are secured pari passu in right of payment and with respect to security with any then existing Term B Loans, the “yield” will not be more than 0.50% higher than the corresponding “yield” applicable to any existing Term B Loans unless the “yield” with respect to the applicable Term B Loans is adjusted to be equal to the “yield” with respect to the relevant Incremental Term Loans, minus 0.50%; provided, further, that in determining the applicable “yield” under this clause (iv): (w) the interest rate margin and any original issue discount (“OID”) or upfront fees paid by the applicable Borrowers in connection with the ~~other Facilities, not be Guaranteed by any Person that is not a Borrower~~ Term B Loans or ~~Guarantor under each of the other Facilities, and be unsecured or secured either~~ Incremental Term Loans (based on a ~~pari passu basis~~ four-year average life to maturity), shall be included, (x) any amendments to or changes in the Applicable Rate with respect to the Term B Loans that became effective subsequent to the Delayed Draw Funding Date but prior to the time of (or concurrently with) the addition of such Incremental Term Loans shall be included, (y) prepayment premiums, customary arrangement, customary commitment, ticking, structuring and customary underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the ~~other Facilities~~ Term B Loans or ~~on a “junior” basis~~ to ~~the other Facilities, in each case over the same~~ one or more arrangers (or ~~less~~their Affiliates) ~~Collateral that secures the Facilities (~~in their capacities as such applicable to such Incremental Term Loans and ~~in the case of~~ any ~~such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility~~ similar fees not paid generally to all Lenders shall be ~~subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and,~~ excluded and (z) if such Incremental ~~Arranger~~ Term Loans include any interest rate floor greater than that which is ~~not~~ applicable to the ~~Administrative Agent~~Term B Loans, such differential between interest rate floors shall be equated to the ~~Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall,~~ applicable interest rate margin for purposes of ~~prepayments~~determining whether an increase to the “yield” applicable to the Term B Loans shall be required, ~~be treated substantially~~ but only to the ~~same as (~~extent an increase in the interest rate floor applicable to the Term B Loans would cause an increase in the interest rate then in effect thereunder, and in ~~any event no more favorably than~~such case, the interest rate floor (but not the interest rate margin) applicable to the Term ~~Facility~~ B Loans shall be increased to the extent of such differential between interest rate floors, and (v) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (v) above) to the extent not identical to the terms of the then outstanding Term A Loans or ~~Revolving Credit Facility~~Term B Loans, as the case may be, ~~unless~~ shall be reasonably satisfactory to the ~~Borrowers otherwise elect (but in~~ Administrative Agent. The terms of any ~~event no more favorably than~~ Increased Commitments shall be the ~~existing Term Loans~~ same as those of the Revolving Commitments or Extended Revolving ~~Credit Loans~~Commitments, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that ~~this clause~~ Refinancing Revolving Commitments may have a later maturity date than, and pricing and fees different from, those applicable to the Revolving Commitments and Extended Revolving Commitments. For the avoidance of doubt, no Lender shall have any obligation to provide any Increased Commitment or Incremental Term Loan. (~~iii~~b) This Section 2.19 shall ~~not apply~~ override any provisions in Section 9.02 to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the ~~Latest Maturity Date of the then o~~contrary.

Appears in 1 contract

Sources: Credit Agreement (CONDUENT Inc)

Incremental Facilities. (a) The ~~Borrowers~~ Parent Borrower may, ~~from time to time after the Closing Date, upon~~ by written notice ~~by the Parent Borrower~~ to the ~~Person appointed by the Borrower~~ Administrative Agent at any time, on one or more occasions, request 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans, any Incremental Term Loans or any CREDIT AGREEMENT, Page 89 Specified Refinancing Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving ~~credit~~ facilities to and/or increase the ~~Facilities, in each case, in~~ principal amount of any such ~~currency or currencies as the Parent Borrower identifies in such notice~~ tranche of incremental revolving facilities (each, a an “~~New~~ Incremental Revolving Facility” and, together with any ~~advance made by a Lender thereunder~~Incremental Term Facility, a “~~New Revolving Loan~~Incremental Facilities”; and the commitments thereof, the “New Revolving Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender loans thereunder, a “~~New Term Loan”; and the commitments thereof~~Incremental Revolving Loans” and, ~~the “New Term Commitment” and~~ together with ~~the Revolving Credit Commitment Increase~~any Incremental Term Loans, ~~the New Revolving Commitments and the Term Commitment Increase, the~~ “~~New Loan Commitments~~Incremental Loans”) in an aggregate amount not to exceed the ~~sum~~ 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 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 ~~greater~~ Dollar Equivalent of ~~(A)~~ $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”)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 ~~unlimited amount~~ 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 “~~Ratio-Based~~ 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) ~~so long~~ 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 ~~Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal~~ Administrative Agent shall reasonably specify to ~~(i)(A) all voluntary prepayments~~ evidence the Incremental Facilities of ~~(1)~~ 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 ~~pursuant~~ thereunder; provided that, (i) subject to ~~Section 2.05(a~~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) ~~and (2) New Incremental Notes~~ that ~~are secured on~~ is a ~~pari passu basis~~ “term loan A” shall be no earlier than the Latest Maturity Date with ~~the~~ respect to Term A Loans and (y) that is a “term loan B~~) all repurchases of (1)~~ ” shall be no earlier than the Latest Maturity Date with respect to Term ~~Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term~~ B Loans, (ii) ~~voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and~~ subject to exceptions for customary bridge financings (~~iii) voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a)~~ to the extent ~~accompanied by~~ convertible on customary terms into a ~~corresponding,~~ permanent ~~reduction~~ instrument otherwise meeting the conditions in ~~the Revolving Credit Commitments pursuant to Section 2.06(a~~this clause (ii)), ~~in each case,~~ the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the ~~extent not funded with~~ remaining weighted average life to maturity of the ~~proceeds of long term Indebtedness~~ then-existing Term A Loans (~~excluding~~it being agreed, for the avoidance of doubt, ~~proceeds~~ that when calculating the weighted average life to maturity of any ~~revolving credit facility (including~~ Indebtedness being amended, restated, amended and restated, supplemented, extended, renewed, replaced, refinanced or otherwise modified, the ~~Revolving Credit Facility)) and in the case~~ effects of any amortization or prepayments made on such ~~prepayment or repurchase at a price below par, based on~~ Indebtedness vis-ά-vis the ~~amount~~ amortization schedule prior to the date of the ~~actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum~~applicable amended, ~~at any such time~~restatement, ~~the “Incremental Amount”); provided that any such request for an increase~~ amendment and restatement, supplement, extension, renewal, replacement, refinancing or other modification shall be ~~in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount~~disregarded), 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 is a “term loan B” shall be ~~deemed~~ no shorter than the remaining weighted average life to ~~have used amounts under the Prepayment-Based Incremental Facility, if any, prior to utilization~~ maturity of the ~~Cash~~then-~~Capped Incremental Facility~~existing Term B Loans, ~~and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization~~ in each case calculated as of the ~~Cash-Capped~~ date of making such Incremental ~~Facility and the Prepayment-Based Incremental Facility,~~ Term Loan (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness it being ~~so redesignated under the Ratio-Based Incremental Facility (which~~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 ~~have~~ be disregarded), (iii) such Incremental Facilities may be pari passu or subordinated in right of payment with respect to the ~~effect~~ Loans outstanding (or made on) the Vion Acquisition Closing Date and/or pari passu or subordinated in right of ~~increasing~~ security with respect to such Loans (and to the ~~Cash~~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 (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien” for purposes of calculating the Secured Leverage Ratio set forth therein, regardless of whether secured or 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-~~Capped~~ existing Term Loans that require ratable prepayment shall be made on a pro rata basis with allsuch then existing Term Loans (and all other then-existing Incremental ~~Facility~~ 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 ~~the Prepayment-Based Incremental Facility~~receive, as applicable, ~~by the amount of such redesignated Indebtedness~~any prepayments on a less than pro rata basis (but not on a greater than pro rata basis)~~; provided~~, ~~that such Indebtedness shall be automatically redesignated~~ (v) subject to exceptions for customary bridge financings (to the extent ~~that, at~~ convertible on customary terms into a permanent instrument otherwise meeting the ~~end of any fiscal quarter, such redesignation would be permitted under~~ conditions in this clause (Cv)), ~~and (D) solely for~~ the ~~purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio~~ maturity date 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 (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, each L/C Issuer (in each case, to the extent the consent commitment reduction date of any ~~of the foregoing would be required to assign~~ Incremental Revolving Credit Loans or Term Loans, as applicable, to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Latest Maturity ~~Date applicable (e) On the Increase Effective~~ Date with respect to ~~an increase to an existing~~ Revolving ~~Tranche~~Commitments, (xvi) ~~each Revolving~~ fromif the Effective Date, if the initial yield over the applicable base rate (such calculation for both the Incremental Facility and the applicable Credit ~~Lender immediately prior~~ Facility, to ~~such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of~~ include the ~~increase~~ upfront fees, any interest rate floors (only to the ~~Revolving~~ extent greater than that applicable to the Credit ~~Commitments~~ Facility then in effect) and any OID (~~each~~as defined below) but excluding any arrangement, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required underwriting or similar fee paid to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participationsthe Administrative Agent, the ~~percentage~~ Commitment Parties under the Credit Facilities or relevant Persons under the Incremental Facility)Yield in respect of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Incremental Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New and/or Incremental Revolving ~~Facility and New Term Facility shall~~ Commitmentsthat are “term B loans” that rank pari passu in right of payment ▇▇▇▇▇ with respect to security with the ~~other Facilities, not be Guaranteed by any Person that is not a Borrower or Guarantor under each of~~ relevant Credit Facilities incurred on the ~~other Facilities,~~ Vion Acquisition Closing Date and ~~be unsecured or secured either~~ maturing on ~~a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same~~ (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any ~~Dollar~~“term loan B”, on or after) the maturity date of the existing applicable Credit Facilityany Term B Loans outstanding on the Fourth Amendment Date exceeds the initialEffective yYield for such existing applicable Credit FacilityTerm B Loans by more than 50 basis points (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-~~denominated~~year life to maturity),0.50%, ~~floating rate New Term Facility that~~ then the Applicable Rate for the existing applicable Credit Facility, to the extent it is pari passu in right of ~~payments and secured on a pari passu basis~~ payment or security with ~~InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based~~ such applicable Incremental Facility, ~~the All-in Yield payable by the Borrowers applicable to such New Term Facility~~ shall be ~~determined by~~ increased so that the ~~Borrowers and~~ initial yield in respect ofsuch relevant Term B Loans shall be increased to the ~~Lenders providing~~ extent necessary so that the Effective Yield for such ~~New~~ Term ~~Facility and shall not be~~ B Loans is equal to the Effective Yield for such Incremental Term Loans and/or Incremental Revolving Commitments is no more than 75 50 basis points higher than the ~~corresponding All-in Yield payable by the Borrowers~~ initial yield for the ~~InitialTranche~~ existing applicable Credit Facilitythat are “term B ~~Term Loans~~CREDIT AGREEMENT, ~~unless~~ Page 91 loans” minus 0.50% and (vii) to the ~~All-~~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 ~~Yield~~ 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 any Incremental Facilitiesy which differ fromare materially more restrictive (taken as a whole) than those with respect to the ~~InitialTranche B Term~~ Loans ~~is increased~~ under the existing applicable Class of Credit Facility shall be reasonably satisfactory to the ~~amount necessary so that~~ Administrative Agent (except to the ~~difference between~~ extent(x) permitted by clauses (i) through (vii) above)of the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000preceding sentence, (By) ~~has a final maturity later than one year~~ applicable only after the Latest Maturity Date of the ~~then o~~relevant Credit Facility outstanding on the Fourth 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 PermittedLimited Condition Acquisition, to the extent agreed to by the lenders providing such Incremental Facility, customary “SunGard” conditionality (including making determinations pursuant to the Permitted Acquisition Determination Method) may be implemented in lieu of theany such conditions set forth in this clausewill be subject to Section 1.10(ec ) hereof.

Appears in 1 contract

Sources: Credit Agreement (Darling Ingredients Inc.)

Incremental Facilities. ~~(a)~~ The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ 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 ~~Parent~~ Borrower), the “Incremental Arranger”) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 revolving credit facilities to the ~~Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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~~ or (iv) the addition of one or more new term loan ~~facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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”) in by an amount not to exceed the sum of (x) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ 20,000,000 and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, ~~further~~further that, subject to Section 1.02(i), at the time that ~~for purposes~~ any such New Loan Commitments are Incurred, made or effected (and after giving pro forma effect thereto), except as set forth in the proviso below, no Event of Default (or, in the case of the Incurrence or provision of any New Loan Commitments ~~established pursuant~~ in connection with an acquisition or other Investment or any prepayment, redemption, repurchase, defeasance, acquisition or similar payment of Indebtedness or Capital Stock that requires irrevocable notice in advance thereof, no Event of Default under Sections 8.01(a), (f) or (g)) shall have occurred and be continuing; provided, further, that (i) New Loan Commitments may be Incurred without regard to the Incremental Amount, without regard to whether an Event of Default has occurred and is continuing and 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~~ 2.14(a), to the extent that the Net Cash Proceeds from such New Loan Commitments are used on the date of Incurrence of such New Term Loans (or substantially concurrently therewith) to either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 2.05(b)(iii) or (y) permanently reduce the Revolving Credit Commitments in accordance with the procedures set forth in Section 2.08 (and any such New ~~Incremental Notes issued pursuant to Section 2.15: (A) the Borrowers~~ Loan Commitments shall be deemed to have ~~used amounts under the Prepayment-Based Incremental Facility, if any, prior~~ been Incurred pursuant to ~~utilization of the Cash-Capped Incremental Facility~~this proviso, and (ii) New Revolving Commitments may be provided without regard to the ~~Borrowers~~ Incremental Amount, without regard to the minimums set forth in the first sentence of this Section 2.14(a) 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 2.06 by an amount equal to the aggregate amount of New Revolving Commitments so provided (and any such New Revolving Commitments shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments been Incurred pursuant to this ~~Section 2.14 and New~~ proviso). The Borrower may designate any Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under the Ratio- Based Incremental Facility (without inclusion Arranger of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (b) Any Lender approached to participate in any New Loan Commitments ~~may elect or decline, in its sole discretion, to participate in~~ with such ~~increase or new facility. The Borrowers may also invite additional Eligible Assignees reasonably satisfactory to~~ titles under 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 (in each case, to the extent the consent of any of the foregoing would be required to assign Revolving Credit Loans or Term Loans, as applicable, to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestas Borrower may deem appropriate. (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 Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o

Appears in 1 contract

Sources: Credit Agreement (PPD, Inc.)

Incremental Facilities. ~~(a) The Borrowers may, from time to time after the Closing Date, upon notice by the Parent Borrower to the Person appointed by the Borrower to arrange an incremental Facility (such Person (who~~ (i) ~~may be~~ After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request the establishment of (x) one or more (A) additional tranches of term 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 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 ~~it so agrees~~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 ~~Person appointed~~ 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 ~~Parent Borrower~~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 ~~“Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof~~applicable Increased Amount Date, ~~request~~ provided that (i) ~~an increase~~ 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 ~~Commitments under~~ 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 ~~Tranche~~ 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 ~~same terms as~~Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, ~~and become part of, the Revolving Tranche proposed~~ commitment or other similar fees payable 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 revolving credit facilities to the Facilities, in each case, in such currency~~ arrangers (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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”their affiliates) in ~~an amount~~ connection therewith) shall not to exceed the sum of (x) the ~~greater of (A) $100,000,000 and (B) Consolidated EBITDA~~ Applicable Margin for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Revolving Loans made pursuant to the ~~terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien~~ Revolving Commitments that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based effect on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amountIncreased Amount Date, and (y) the ~~entire amount~~ 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 ~~increase~~ 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 ~~may~~ 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 ~~requested under this Section 2.14~~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 ~~for purposes~~ the interest margin in respect of ~~any New Loan Commitments established pursuant to this Section 2.14 and New~~ such 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Synthetic L/C Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be ~~incurred under~~ increased by an additional 200 basis points in the ~~Ratio-Based Incremental Facility (to~~ form of an additional OID or upfront fees if reasonably necessary after increasing the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility (which, Applicable Margin for the ~~avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility,~~ Term Loans as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under set forth in this clause (Cvii), ~~and~~ and (Dviii) ~~solely for~~ the ~~purpose of calculating the Consolidated First Lien Net Leverage Ratio~~Incremental Revolving Commitments, the ~~Consolidated Senior Secured Net Leverage Ratio~~ Incremental Term Loan Commitments 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 (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, each Synthetic 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) Commitments 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facilityeffected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the 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 this ~~Section 2.14~~Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, 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. 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 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, (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 Increased Amount Date on which any Incremental Term Loan Commitments 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 Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, 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 Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the “Incremental 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 amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or ~~appropriate~~ appropriate, in the opinion of the Administrative Agent, to ~~give~~ effect ~~to such increase or new facility in accordance with its terms as set forth herein, including, for~~ the provisions of this Section 2.23. For the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Tranche A Term Loans ~~made under the Term Loan~~ constitute Incremental 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~~ A Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Tranche B Term Loans ~~or Revolving Credit~~ constitute Incremental Term Loans~~, as applicable)~~, and (iii) ~~with respect to any Dollar-denominated, floating rate New~~ the Tranche A Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility Lenders shall be ~~determined by the Borrowers~~ Incremental Term Loan Lenders, in each case, for all purposes of this Agreement and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other ~~such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o~~Loan Documents.

Appears in 1 contract

Sources: Credit Agreement (Avis Budget Group, Inc.)

Incremental Facilities. (a) The Borrowers may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower Representative to the ~~Person appointed by the Borrower to arrange an incremental Facility (such Person~~ Administrative Agent (who ~~(i) may be~~ shall promptly notify the ~~Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”~~applicable Lenders) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 ~~revolving credit~~ term loan 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice 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~~ Increase and the Term Commitment Increase, the “New Loan Commitments”) in 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 ~~greater~~ aggregate principal amount of (A1) ~~$100,000,000~~ 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 (B3) ~~Consolidated EBITDA for~~ Incremental Notes (as defined in the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ Second Lien Credit Agreement) incurred pursuant to Section 2.15of the Second Lien Credit Agreement in reliance on the Cash-Capped Incremental Facility (~~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~~ as defined in the ~~definition of “Consolidated EBITDA” and Section 1.10~~Second Lien Credit Agreement) (such aggregate amount, the “Cash-Capped Incremental Facility”), ) plus (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum First Lien Net Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied ~~and~~ plus (z) an amount equal to all (~~i)(A~~i) ~~all~~ voluntary prepayments of ~~(1)~~ Term Loans made pursuant to Section 2.05(a) or Section 10.07(j)(i)(A) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii~~) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii~~) voluntary prepayments of Revolving Credit Loans ~~made pursuant to Section 2.05(a)~~ and Revolving Credit Commitment Increases to the extent ~~accompanied by a corresponding, permanent reduction in~~ the Revolving Credit Commitments ~~pursuant to Section 2.06(a~~with respect thereto are permanently reduced by the amount of such payments, other than in the case of clauses (i) and (ii), ~~in each case, to the extent not funded~~ such voluntary prepayments financed with the proceeds of ~~long term~~ other Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “~~Prepayment-Based~~ Prepay Incremental ~~Facility~~Amount”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of equal to the lesser of (x) ~~$5,000,000 or, in~~ the ~~case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ applicable Threshold Amount and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that ~~for purposes~~ (1) if at the time of any ~~New Loan Commitments established pursuant to this Section 2.14~~ 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 ~~New Incremental Notes issued pursuant to Section 2.15:~~ (Ay), (2) any capacity available under the ~~Borrowers~~ foregoing clause (y) shall be deemed to ~~have used amounts~~ be utilized prior to utilizing any capacity available under the ~~Prepayment-Based Incremental Facility, if any, prior to utilization of~~ foregoing clause (x) and (3) loans may be incurred under the Cash-Capped Incremental Facility, ~~and the Borrowers shall be deemed to have used~~ the Ratio-Based Incremental Facility ~~(to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility~~ and the ~~Prepayment-Based~~ Prepay Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental FacilityAmount, and proceeds from 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~~ first, calculating the incurrence of the Prepay Incremental Amount, if any, second calculating the incurrence under the Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the PrepaymentRatio-Based Incremental Facility ~~(without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or~~ and third calculating the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, further, that ~~such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D)~~ solely for the purpose of calculating the ~~Consolidated~~ Maximum First Lien Net Leverage ~~Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio~~ Requirement to determine the availability under the ~~Ratio-Based Incremental Facility~~ 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~~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 ~~to participate in any New Loan Commitments~~ may elect or decline, in its sole discretion, to ~~participate in~~ 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 ~~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 (~~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~~ consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed) to become Lenders pursuant to a joinder agreement to this ~~Agreement. Neither~~ 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 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestAgent. (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~~ 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,~~ increase or 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,~~ increase or New Term ~~Facility or New Revolving~~ Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term ~~Facility or New Revolving~~ Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize ~~the any~~ such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term ~~Facility or New Revolving~~ Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date~~, in the case of an increase to an existing Term Loan Tranche~~, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in 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. If the Incremental Arranger is not the Administrative Agent, the actions authorized to be taken by the Incremental Arranger herein shall be done in 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 ~~or New Revolving Facility~~ pursuant to this Section 2.14, (i) except as set forth below, no Event of Default ~~(subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i))~~ would exist after giving effect to such increase; , (ii) ) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans~~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 applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”)for, and ~~each~~ such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit additional Loans shall ~~on or prior~~ not have a Weighted Average Life to Maturity shorter than the ~~Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments)~~longest remaining weighted average life of, ~~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 other outstanding 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~~ New Term Loans ~~under such~~ or Specified Refinancing Term ~~Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings)~~Loans, so that (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 Facilitiesas applicable, and ~~be unsecured or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same~~ (~~or less~~C) ~~Collateral that secures the Facilities (and~~ in the case of any ~~such junior secured New Revolving Facility or~~ New Term Facility, such New ~~Revolving~~ Term Facility or 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 ~~subject~~ no shorter than that of any existing Term Loan Tranche, (iii) except with respect to ~~intercreditor arrangements~~ 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, if such Incremental Arranger is not~~ and the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oAgent and

Appears in 1 contract

Sources: First Lien Credit Agreement (Pivotal Acquisition Corp)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower or any Guarantor may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to 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 Parent Borrower)~~Person, the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 (ivii) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment”) and/or (iii) the establishment of one or more new revolving credit commitments (each a “New Revolving Facility”; and any advance made by a Lender thereunder, a “New Revolving Loan”; and the commitments thereof, the “New Revolving Commitment” ~~and~~ and, together with the ~~Revolving Credit~~ Term Commitment ~~Increase,~~ Increase and the New ~~Revolving~~ Term Commitments ~~and the Term Commitment Increase,~~ the “New Loan Commitments”) ~~in an~~ 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”) (I) the greater of (A) $~~100,000,000~~ 206,000,000 and (B) 100% of Consolidated EBITDA ~~for~~ of the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ 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~~) (the “Cash-Capped Incremental Facility”~~), 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 ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to ~~(i)(A)~~ 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 (~~1) Term Loans made~~ including pursuant to Section ~~2.05(a~~3.08 or any substantially similar provisions in the documentation governing any applicable Indebtedness)) ~~and (2) New Incremental Notes that are secured on a pari passu basis with~~ made by the ~~Term Loans and (B) all repurchases~~ Borrower or any of its Restricted Subsidiaries in respect of (1I) ~~Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the~~ Initial Term Loans, (iiII) ~~voluntary prepayments~~ 2022 Incremental Term 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 ~~all~~ any Indebtedness specified in clauses (I), (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 ~~Lien that is~~ first lien pari passu or senior basis with ~~the~~ Liens securing the Obligations and (~~iii~~XXI) ~~voluntary~~ any refinancing, replacement or extension of any of the foregoing (in each case of prepayments of ~~Revolving~~ a revolving facility or “Loans” as defined in the ABL Credit ~~Loans made pursuant to Section 2.05(a)~~ Agreement as in effect on the Closing Date, to the extent accompanied by a ~~corresponding~~corresponding permanent commitment reduction), ~~permanent reduction in~~ to the ~~Revolving Credit Commitments pursuant to Section 2.06(a)~~extent, in each case, ~~to the extent~~ not funded with the proceeds of long term Indebtedness (~~excluding~~other than any (I) revolving indebtedness and intercompany loans or (II) without duplication, ~~for the avoidance of doubt~~any New Term Loans, ~~proceeds of any revolving credit facility (including the Revolving Credit Facility)) and~~ New Incremental Notes or Incremental Equivalent Debt incurred in ~~the case of any such prepayment or repurchase at a price below par, based~~ reliance on the ~~amount of the actual cash expenditure~~ Prepayment-Based Incremental Facility) (the “Prepayment-Based Incremental Facility”~~) (such sum, at any such time, the “Incremental Amount”~~); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o;

Appears in 1 contract

Sources: First Lien Credit Agreement (V2X, Inc.)

Incremental Facilities. (a) The ~~Borrowers may, from time to time after the Closing Date, upon notice by the~~ Parent Borrower may by written notice to Administrative Agent elect to request 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 establishment of one or more ~~new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ (~~each,~~ x) additional tranches of term loans (including on a ~~“New Revolving Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”; and~~ delayed draw basis) (the commitments thereof, the “New Revolving Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereofthereto, the “New Term ~~Commitment~~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~~ and, together with the New Revolving Credit ~~Commitment Increase~~Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving ~~Commitments and the Term Commitment Increase~~Credit Commitments, the “New Loan Commitments”~~) in~~ ), by an aggregate amount not ~~to exceed~~ in excess of the ~~sum of~~ 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 ~~greater of~~ Administrative Agent or (Ay) ~~$100,000,000 and (B) Consolidated EBITDA for~~ shall constitute the ~~most recently ended four fiscal quarter period for which internal financial statements are available (and after giving effect to any acquisition consummated concurrently therewith on a Pro Forma Basis~~ difference between the Maximum Incremental Facilities Amount and all ~~other appropriate pro forma adjustment events consistent with~~ such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the ~~definition of “Consolidated EBITDA” and Section 1.10)~~ date on which the Parent Borrower proposes that the New Loan Commitments shall be effective (the effective date, the “~~Cash-Capped Incremental Facility~~Increased Amount Date”), the Borrowers (yincluding by appointing a Guarantor (other than Holdings) ~~an unlimited amount~~ 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 “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant currency in which such New Loan Commitments will be borrowed. Subject to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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(a1.11(c), in ~~each case~~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 ~~extent~~ Administrative Agent a certificate certifying that the New Loan Commitments do not ~~funded with~~ exceed the ~~proceeds of long term Indebtedness~~ 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 (~~excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)~~other than a natural Person) ~~and in the case of any such prepayment~~ to provide all or ~~repurchase at~~ a ~~price below par, based on the amount~~ portion of the ~~actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”)~~New Loan Commitments; provided that any ~~such request for an increase shall be in~~ Lender offered or approached to provide all or a ~~minimum amount~~ portion of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (b) Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to ~~participate~~ 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 ~~increase or new facility. The Borrowers may also invite additional Eligible Assignees reasonably satisfactory~~ Section 7.1 shall be deemed to refer to the ~~Incremental Arranger and~~applicable date determined in accordance with Section 1.11(c)); provided, ~~solely~~ 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 ~~Increase or~~ and, each Loan made under a New Revolving ~~Facility~~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 ~~consent of~~ New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative ~~Agent~~Agent and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld, ~~each L/C Issuer (in each case,~~ delayed or conditioned) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent ~~the consent of any of the foregoing~~ such consent, if any, would be required ~~to assign~~ under Section 13.6(a) for an assignment of Revolving Loans or Revolving Credit ~~Loans or Term Loans~~Commitments, as applicable, to such ~~Eligible Assignee, which consents shall not be unreasonably withheld, conditioned~~ Lender 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 Incremental Revolving Loan ~~Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new~~ Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If 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 ~~Revolving Tranche or a~~ New Term Loan ~~Tranche is increased~~ Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrowers, as specified in ~~accordance~~ the applicable Notice of Borrowing, (a “New Term Loan” and, together with ~~this Section 2.14 or~~ the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount up to its New Term Loan Commitment of such Series, and (ii) a each New Term ~~Facility or~~ Loan Lender of any Series shall become a Lender hereunder with respect to the New ~~Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”)~~ Term Loan Commitment of such Series and the ~~final allocation~~ New Term Loans of such ~~increase,~~ Series made pursuant thereto. (d) The terms and provisions of the 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,~~ Loans and New Term ~~Facility or New Revolving Facility~~ Loan Commitments of any Series shall be on terms and documentation set forth in the ~~Increase Effective Date. In connection with~~ Joinder Agreement as determined by the Parent Borrower; provided that (i) ~~any increase in a~~ subject to the Inside Maturity Exceptions, the applicable New Term Loan ~~Tranche~~ 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 ~~Revolving Tranche or~~ obtaining of a commitment with respect thereto); (ii) ~~any addition of a~~ subject to (1) New Term ~~Facility~~ Loans incurred on or after the date that is 6 months after the ClosingAmendment No. 5 Effective Date, (2) New ~~Revolving Facility~~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 ~~each case~~reliance upon the Shared Incremental Amount or the Prepayment and Extension Amount, ~~pursuant~~ (4) any New Term Loans incurred in connection with a Permitted Acquisition or other permitted Investment or to ~~this Section 2.14~~refinance Indebtedness incurred in connection with a Permitted Acquisition or other permitted Investment, ~~this Agreement~~ (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 ~~other Loan Documents may be amended in a writing (which may be executed and delivered~~ last day of the most recently ended Test Period, as selected by the ~~Borrowers~~ Parent Borrower and (6) any New Term Loans that constitutes a bridge facility (clauses (1), (2), (3), (4), (5) and (6), collectively, the ~~Incremental Arranger~~ “MFN Exceptions”); and (v) to the extent such terms and ~~the Lenders hereby authorize the any such Incremental Arranger~~ documentation are materially more favorable to ~~execute and deliver any such documentation)) in order to establish~~ the New Term ~~Facility~~ Loan Lenders than the terms of the existing Initial Term Loans or ~~New Revolving Facility or to effectuate the increases~~ thethen existing Amendment No. 35 Term Loans (except 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, includingextent permitted (or, for the avoidance of doubt, at not prohibited) by clause (i), (ii), (iii) or (iv) above), they shall be either (A) reasonably satisfactory to the ~~option~~ Administrative Agent (provided that no consent shall be required by the Administrative Agent or any of the ~~Parent Borrower, with respect to~~ Lenders if any ~~increase in~~ covenants or other provisions are only applicable after the ~~Applicable Rate relating to any existing~~ Initial Term ~~Facility to bring~~ Loan Maturity Date or if such ~~Applicable Rate in line with~~ covenants or other provisions are added for the ~~New Term Facility to achieve fungibility with such existing Term Facility. As~~ benefit 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 Initial Term Loans or ~~Specified Refinancing~~ the Amendment No. 35 Term Loans, as applicable), (B) ~~shall be amended in writing~~ then-current market terms (~~which may be executed and delivered~~ as determined by the ~~Borrowers and~~ Borrower in good faith at the ~~Incremental Arranger~~ time of incurrence or issuance (~~and~~ or the ~~Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation~~obtaining of a commitment or establishment of initial terms with respect thereto)) for the applicable type of Indebtedness or (C) applicable only to ~~increase~~ periods after the ~~then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such~~ Initial 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~~ Maturity Date. (de) ~~With respect to any~~ Incremental Revolving Credit ~~Commitment Increase, Term Commitment Increase or addition of New Term Facility or New~~ Commitments and Incremental Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the final maturity Credit Loans shall be ~~the same as the Maturity Date applicable~~ identical to the Amendment No. 4 Revolving Credit ~~Facility, (2) no amortization or mandatory commitment reduction prior to~~ Commitments and the ~~Maturity Date applicable to the~~ related 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) other than with respect to any Extendable Bridge Loans, ~~the final maturity shall be no earlier~~ other than the Maturity Date ~~applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically~~ and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures as set forth in ~~Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and~~ this Section 2.14(e); provided that 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 thatthis Section 2.14 or otherwise: (i) ~~Any New~~ any such Incremental Revolving ~~Facility and New Term Facility~~ Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the ~~other Facilities~~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), ~~not be Guaranteed by any Person that is not a Borrower or Guarantor under each~~ (2) repayments required upon the maturity date of the ~~other Facilities~~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 ~~unsecured or secured either~~ made on a ~~pari passu~~ pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to Section 3.12 to the ~~other Facilities~~ 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 ~~“junior”~~ pro rata basis ~~to the other Facilities, in each case over~~ by all Lenders with Revolving Credit Commitments of the same ~~(or less) Collateral that secures~~ Series in accordance with their percentage of such Revolving Credit Commitments on the ~~Facilities~~ 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 ~~case~~ 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 ~~junior secured New~~ 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 ~~Facility or New Term Facility, such New~~ Credit Commitments and Incremental Revolving ~~Facility or New Term Facility~~ Credit Loans shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially governed by the same ~~as (~~assignment and ~~in any event no more favorably than) the Term Facility or~~ participation provisions applicable to Revolving Credit ~~Facility~~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, ~~unless~~ of Commitments from the ~~Borrowers otherwise elect~~ Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (~~but in~~ viii) to the extent that any ~~event no more favorably than~~ New Term Loan does not form a part of the ~~existing~~ 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 ~~Revolving Credit Loans~~any other security identifier, ~~as applicable),~~ 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 (~~iii~~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 ~~Dollar-denominated, floating rate New Term Facility that is pari passu in right~~ principal amount of ~~payments and secured on a pari passu basis with InitialTranche B~~ such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and ~~is incurred on or prior~~ to provide for other terms consistent with this Section 2.14(g). In order to establish any Extended Term Loans, the Parent Borrower shall provide a notice to the ~~date that is 12 months~~ 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 ~~Closing Date and under~~ Initial Term Loan Maturity Date; provided, however, that (x) the ~~Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility~~ scheduled final maturity date shall be ~~determined by~~ extended and all or any of the ~~Borrowers and~~ 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 ~~New~~ Extended Term ~~Facility and shall not be more than 75 basis points higher than the corresponding All-~~Loans in ~~Yield payable~~ addition to or in lieu of any increased margins contemplated by the ~~Borrowers~~ 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 ~~InitialTranche B~~ benefit of the applicable Existing Term ~~Loans, unless the All-in Yield with respect~~ Loan Class. No Lender shall have any obligation to ~~the InitialTranche B~~ agree to have any of its Term Loans ~~is increased to the amount necessary so that the difference between the All-in Yield with respect to such New~~ of any Existing Term ~~Facility and the corresponding All-in Yield on the InitialTranche B~~ Loan Class converted into Extended Term Loans ~~is equal to 75 basis points; provided that this clause (iii) shall not apply~~ pursuant to any ~~New~~ Extension Request. Any Extended Term ~~Facility that (A) is in an aggregate principal amount (together with~~ Loans of any ~~other such New Term Facility) equal to or less than $100,000,000, (B) has~~ Extension Series shall constitute a ~~final maturity later than one year after the Latest Maturity Date of the then o~~separate Cla

Appears in 1 contract

Sources: Credit Agreement (Mirion Technologies, Inc.)

Incremental Facilities. (a) ~~The Borrowers~~ A Borrower may, ~~from time to time after the Closing Date, upon~~ by written notice by the Parent Borrower to the ~~Person appointed by the Borrower~~ Administrative Agent, elect to ~~arrange an incremental Facility (such Person (who~~ request, from time to time, on one or more occasions, (i) ~~may be~~ the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 establishment of one or more new term loan ~~facilities~~commitments (by way of adding one or more new term loan facilities and/or increasing the term loans under an existing term loan facility prior to its maturity date) (the “New Term Commitments”) and/or (ii) the establishment of one or more new revolving commitments (by way of adding one or more revolving credit facilities and/or increasing any existing Class of Revolving Commitments prior to their applicable Maturity Date) denominated in dollars or an Alternative Currency (the “New Revolving Commitments” and, together with the New Term Commitments, the “New Commitments”), in each case, to the extent agreed by the Persons providing the same, in a principal amount (A) not less than the Dollar Equivalent of $50,000,000 individually (or such ~~currency~~ lesser amount which shall be reasonably approved by the Administrative Agent or ~~currencies as~~ that shall constitute the ~~Parent Borrower identifies~~ remaining available amount of New Commitments permitted to be established pursuant to and in ~~such notice (each~~accordance with this Section 2.24(a)), ~~a “New Term Facility”;~~ and ~~any advance made by a Lender thereunder, a “New Term Loan”; and~~ integral multiples of the ~~commitments~~ Dollar Equivalent of $5,000,000 in excess thereof, and (B) not to exceed, for all New Commitments established pursuant to this Section 2.24(a) after the ~~“New Term Commitment” and together with~~ Fifteenth Amendment Effective Date (other than amounts incurred pursuant to the ~~Revolving Credit Commitment Increase~~Ratio-Based Prong), an aggregate amount equal to the sum of the Dollar Equivalent of (1) (X) prior to the Hurricane Acquisition Closing Date, the ~~New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) in an amount not to exceed the sum~~ greatest of (x) ~~the greater~~ $2,710,000,000, (y) 10.50% of ~~(A) $100,000,000~~ Total Assets and (Bz) 85.0% of Consolidated ~~EBITDA~~ Cash Flow for the most recently ended ~~four fiscal quarter period for which internal financial statements are available~~ Test Period (calculated on a pro forma basis), and (Y) on 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~~ Hurricane Acquisition Closing Date, the greatest of ~~“Consolidated EBITDA” and Section 1.10~~(x) ~~(the “Cash-Capped Incremental Facility”)~~$4,500,000,000, (y) 10.50% of Total Assets and (z) 85.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis) (this clause (1), the “Free and Clear Amount”), plus (2) amounts available under Section 6.01(b)(xxii) at such time (it being understood that usage of such amounts shall reduce availability under such basket on a dollar-for-dollar basis) (this clause (2), the “Reallocated Amount”), plus (3) the aggregate amount of any voluntary prepayment, redemption, repurchase or other retirement of Term Loans and/or any permanent reductions of the commitments under any Revolving Facility (including loan buybacks and open market purchases permitted under this Agreement and the other Loan Documents or termination from the “yank-a-bank” provisions, to the extent of the actual purchase price paid in cash) and/or the amount of any permanent prepayment of Indebtedness secured on a pari passu basis with the Guaranteed Obligations (this clause (3), the “Prepayment Amount”), plus (4) in the case of New Commitments that serve to effectively refinance, replace and/or extend the maturity of then-existing Term Loans, Revolving Commitments and/or Revolving Loans, an amount equal to the portion of such Term Loans, Revolving Commitments and/or Revolving Loans to be replaced with such New Commitments (this clause (4), the “Replacement Amount” and, the Replacement Amount, collectively with the Free and Clear Amount, the Reallocated Amount and the Prepayment Amount, the “Non-Ratio Based Prong”), in the case of the Prepayment Amount and the Replacement Amount, to the extent not funded or effected with any long term Indebtedness (other than revolving Indebtedness); provided that, any Borrower shall also have the right to obtain additional New Commitments without regard to the Non-Ratio Based Prong in an unlimited amount (the “Ratio-Based Prong” and, the Ratio-Based Prong, together with the Non-Ratio Based Prong, the “Maximum Incremental ~~Facility~~Amount”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loansas, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of this Ratio-Based Prong, on a pro forma basis after giving effect to the incurrence of such New Commitments incurred pursuant to this Section 2.24 or any ~~such prepayment or repurchase at a price below par~~Indebtedness incurred pursuant to Section 6.01(b)(xxiii), ~~based on~~ and the ~~amount~~ application of the ~~actual~~ proceeds thereof (without netting the cash ~~expenditure (the “Prepayment-Based Incremental Facility”) (such sum~~proceeds thereof, ~~at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or~~and, in the case of any New ~~Loan~~ Commitments ~~denominated~~ in ~~an Alternative Currency~~the form of New Revolving Commitments, Revolving Commitments and/or Revolving Loans, or revolving facilities or revolving commitments pursuant to Section 6.01(b)(xxiii) then being established, assuming a full drawing thereunder), (1) in the case of Indebtedness secured by a Lien on the Collateral that ranks pari passu with the Lien securing the Guaranteed Obligations, the ~~Alternative Currency Equivalent of such amount~~Consolidated First Lien Net Leverage Ratio would not exceed, on a pro forma basis, (X) prior to the Hurricane Acquisition Closing Date, 1.25:1.00, and (yY) on and after the Hurricane Acquisition Closing Date, 3.50:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure, the Consolidated First Lien Net Leverage Ratio (on a pro forma basis for such transaction and the incurrence of such Indebtedness) would not exceed the greater of (A) (X) prior to the Hurricane Acquisition Closing Date, 1.25:1.00, and (Y) on and after the Hurricane Acquisition Closing Date, 3.50:1.00, and (B) the ~~entire amount~~ Consolidated First Lien Net Leverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of ~~any increase~~ “Specified Transaction”), disposition or capital expenditure), (2) in the case of Indebtedness secured by a Lien on the Collateral that ~~may~~ ranks junior to the Lien securing the Guaranteed Obligations, the Consolidated Secured Net Leverage Ratio would not exceed, on a pro forma basis, (X) prior to the Hurricane Acquisition Closing Date, 1.75:1.00, and (Y) on and after the Hurricane Acquisition Closing Date, 4.00:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure, the Consolidated Secured Net Leverage Ratio (on a pro forma basis for such transaction and the incurrence of such Indebtedness) would not exceed the greater of (A) (X) prior to the Hurricane Acquisition Closing Date, 1.75:1.00, and (Y) on and after the Hurricane Acquisition Closing Date, 4.00:1.00, and (B) the Consolidated Secured Net Leverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure) and (3) in the case of unsecured Indebtedness or Indebtedness secured only by a Lien on assets that do not constitute Collateral either (A) the Consolidated Total Net Leverage Ratio would not exceed, on a pro forma basis, (X) prior to the Hurricane Acquisition Closing Date, 4.00:1.00, and (Y) on and after the Hurricane Acquisition Closing Date, 4.50:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure, the Consolidated Total Net Leverage Ratio (on a pro forma basis for such transaction and the incurrence of such Indebtedness) would not exceed the greater of (I) (X) prior to the Hurricane Acquisition Closing Date, 4.00:1.00, and (Y) on and after the Hurricane Acquisition Closing Date, 4.50:1.00, and (II) the Consolidated Total Net Leverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure) or (B) the Fixed Charge Coverage Ratio would be ~~requested~~ no less than, on a pro forma basis, 2.00:1.00 (or, to the extent incurred in connection with an acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure, the Fixed Charge Coverage Ratio (on a pro forma basis for such transaction and the incurrence of such Indebtedness) would be no less than the lesser of (I) 2.00:1.00 and (II) the Fixed Charge Coverage Ratio immediately prior to such acquisition, Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), disposition or capital expenditure), it being understood and agreed that, unless the Parent Borrower otherwise elects, availability under ~~this Section 2.14; provided~~the Ratio-Based Prong shall be deemed used prior to availability under the Free and Clear Amount, ~~further~~the Reallocated Amount, ~~that for purposes of any~~ the Prepayment Amount or the Replacement Amount to the maximum extent permitted thereunder. Any such 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such2.24(a) 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 subject to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures restrictions thereon set forth in Sections ~~2.01~~ 6.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o6.

Appears in 1 contract

Sources: Credit Agreement (NRG Energy, Inc.)

Incremental Facilities. (a) The Borrowers may, from time to time after the Closing Date, ~~upon notice by the Parent Borrower to the Person appointed by the Borrower to~~ arrange an incremental Facility (with such Person arranging such Facility (who may be (i) ~~may be~~ the Administrative ~~Agent, if it so agrees,~~ Agent or (ii) any other Person appointed by the ~~Parent Borrower~~Borrower Representative ), the “Incremental Arranger”) ~~specifying the proposed amount thereof and the proposed currency denomination thereof, request~~ with such Facility being (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 revolving credit facilities to the Facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower ~~identifies in such notice~~ 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 loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower ~~identifies in such notice~~ Representative elects (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o:

Appears in 1 contract

Sources: Credit Agreement (Atotech LTD)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower or any Guarantor may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to 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 Parent Borrower)~~Person, the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment~~” and~~ ”) and/or (ii) an increase in the amount of the Revolving Credit Commitments (a “Revolving Commitment Increase”; and, together with the ~~Revolving Credit Commitment Increase, the~~ New ~~Revolving Commitments and the~~ Term ~~Commitment Increase~~Commitments, the “New Loan Commitments”) ~~in an~~ by (or in) a principal amount not to exceed the sum of (xsuch 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”) (I) the greater of (A) $~~100,000,000~~ 500,000,000 and (B) 35% of Consolidated EBITDA ~~for~~ of the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ Group Parties, minus (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 1.10II) Incremental Equivalent Cash Component Debt, plus (~~the “Cash-Capped Incremental Facility”), (y~~ii) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied ~~and~~ and (ziii) an amount equal to (~~i)(A~~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 Indebtedness 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 ~~(1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on~~ a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loansrevolving facility, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) to the extent accompanied by a ~~corresponding~~corresponding permanent commitment reduction), and (2) permanent ~~reduction in~~ commitment reductions of the Revolving Credit ~~Commitments pursuant~~ Facility and other revolving credit facilitates established in reliance on the “Cash-Capped Incremental Facility” or the “Ratio-based Incremental Facility”, to ~~Section 2.06(a)~~the extent, in each case, ~~to the extent~~ not funded with the proceeds of long term Indebtedness (~~excluding~~other than any (I) revolving indebtedness and intercompany loans or (II) without duplication, ~~for the avoidance of doubt~~any Revolving Commitment Increase, ~~proceeds of any revolving credit facility (including the Revolving Credit Facility)) and~~ New Term Loans or Incremental Equivalent Debt incurred in ~~the case of any such prepayment or repurchase at a price below par, based~~ reliance on the ~~amount of the actual cash expenditure~~ Prepayment-Based Incremental Facility (the “Prepayment-Based Incremental Facility”~~) (such sum, at any such time, the “Incremental Amount”~~)); provided that any such request for ~~an increase~~ a New Loan Commitment shall be in a minimum amount of the lesser of (x) $5,000,000 ~~or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ and (y) the entire amount of any ~~increase~~ New Loan Commitment that may be requested under this Section 2.14; ~~provided, further,~~ 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:~~ 2.14, (A) unless otherwise elected by the ~~Borrowers~~ Borrower, 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 Borrowers shall be deemed to have used~~ the Ratio-Based Incremental Facility (to the extent ~~compliant therewith~~permitted thereby) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o

Appears in 1 contract

Sources: Credit Agreement (Seagate Technology Holdings PLC)

Incremental Facilities. ~~(a)~~ The ~~Borrowers~~ Borrower or any Guarantor may, from time to time after the Closing Date, ~~upon~~ upon(a) notice by the ~~Parent~~ Borrower to 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 Parent Borrower)~~Person, the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 (ivii) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment”) and/or (iii) the establishment of one or more new revolving credit commitments (each a “New Revolving Facility”; and any advance made by a Lender thereunder, a “New Revolving Loan”; and the commitments thereof, the “New Revolving Commitment” ~~and~~ and, together with the ~~Revolving Credit~~ Term Commitment ~~Increase,~~ Increase and the New ~~Revolving~~ Term Commitments ~~and the Term Commitment Increase,~~ the “New Loan Commitments”) ~~in an~~ 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”) (I) the greater of (A) $~~100,000,000~~ 206,000,000 and (B) 100% of Consolidated EBITDA ~~for~~ of the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ 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~~) (the “Cash-Capped Incremental Facility”~~), plus (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (yII) the ~~entire amount of any increase that may be requested under this Section 2.14; provided~~General Debt Basket Reallocated Amount, ~~further~~minus (III) Incremental Equivalent Cash Component Debt, 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oplus 112

Appears in 1 contract

Sources: First Lien Credit Agreement (V2X, Inc.)

Appears in 1 contract

Sources: Credit Agreement (E.W. SCRIPPS Co)

Incremental Facilities. (a) The ~~Borrowers may, from time to time after the Closing Date, upon notice by the~~ Parent Borrower may by written notice to Administrative Agent elect to request 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 establishment of one or more ~~new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ (~~each,~~ x) additional tranches of term loans (including on a ~~“New Revolving Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”; and~~ delayed draw basis) (the commitments thereof, the “New Revolving Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereofthereto, the “New Term ~~Commitment~~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~~ and, together with the New Revolving Credit ~~Commitment Increase~~Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving ~~Commitments and the Term Commitment Increase~~Credit Commitments, the “New Loan Commitments”~~) in~~ ), by an aggregate amount not ~~to exceed~~ in excess of the ~~sum of~~ 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 ~~greater of~~ Administrative Agent or (Ay) ~~$100,000,000 and (B) Consolidated EBITDA for~~ shall constitute the ~~most recently ended four fiscal quarter period for which internal financial statements are available (and after giving effect to any acquisition consummated concurrently therewith on a Pro Forma Basis~~ difference between the Maximum Incremental Facilities Amount and all ~~other appropriate pro forma adjustment events consistent with~~ such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the ~~definition of “Consolidated EBITDA” and Section 1.10)~~ date on which the Parent Borrower proposes that the New Loan Commitments shall be effective (the effective date, the “~~Cash-Capped Incremental Facility~~Increased Amount Date”), the Borrowers (yincluding by appointing a Guarantor (other than Holdings) ~~an unlimited amount~~ 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 “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant currency in which such New Loan Commitments will be borrowed. Subject to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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(a1.11(c), in ~~each case~~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 ~~extent~~ Administrative Agent a certificate certifying that the New Loan Commitments do not ~~funded with~~ exceed the ~~proceeds of long term Indebtedness~~ 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 (~~excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)~~other than a natural Person) ~~and in the case of any such prepayment~~ to provide all or ~~repurchase at~~ a ~~price below par, based on the amount~~ portion of the ~~actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”)~~New Loan Commitments; provided that any ~~such request for an increase shall be in~~ Lender offered or approached to provide all or a ~~minimum amount~~ portion of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (b) Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to ~~participate~~ 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 ~~increase or new facility. The Borrowers may also invite additional Eligible Assignees reasonably satisfactory~~ Section 7.1 shall be deemed to refer to the ~~Incremental Arranger and~~applicable date determined in accordance with Section 1.11(c)); provided, ~~solely~~ 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 ~~Increase or~~ and, each Loan made under a New Revolving ~~Facility~~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 ~~consent of~~ New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative ~~Agent~~Agent and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld, ~~each L/C Issuer (in each case,~~ 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 ~~consent~~ date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing ~~would be required~~ terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to ~~assign~~ 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 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 such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) any New Term Loans shall be ~~required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14~~ determined by the Borrower(s) and ~~such execution shall not be required for any such joinder agreement to be effective~~the Lenders thereunder; provided ~~that~~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 ~~any~~ such New ~~Loan Commitments~~Term Loans, the ~~Borrowers must provide~~ 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 ~~Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice~~ extent of the ~~identity of any new Lender~~Effective Yield differential); ~~provided~~ provided, further, that ~~such new Lender~~ the MFN Provision shall ~~agree~~ not apply to ~~provide applicable “know your customer”~~(1) New Term Loans incurred on or after the date that is 6 months after the Closing Date, ~~anti-money laundering rules~~ (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 ~~regulations~~Extension Amount, ~~including~~ (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 ~~Patriot Act~~greater of $191,000,000 and 100% of Consolidated EBITDA as of the last day of the most recently ended Test Period, ~~and other customary onboarding information reasonably requested~~ as selected by the ~~Administrative Agent upon request.~~ Parent Borrower and (c6) ~~If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a~~ any New Term ~~Facility or New Revolving Facility is added in accordance with this Section 2.14~~Loans that constitutes a bridge facility (clauses (1), (2), (3), (4), (5) and (6), collectively, the ~~Borrowers shall determine~~ “MFN Exceptions”); and (v) to the ~~effective date (the “Increase Effective Date”)~~ extent such terms 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 documentation are materially more favorable to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term ~~Facility~~ Loan Lenders than the terms of the existing Initial Term Loans or ~~New Revolving Facility or to effectuate~~ the ~~increases~~ existing Amendment No. 3 Term Loans (except 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, includingextent permitted (or, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(anot prohibited) ~~(or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered~~ by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, clause (i~~) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment~~), ~~Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase;~~ (ii) , (iii) or (iv) above), they shall be either (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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the ~~Incremental Arranger and,~~ 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 ~~Incremental Arranger is not~~ covenants or other provisions are added for the ~~Administrative Agent,~~ benefit of the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Initial Term Loans or ~~Revolving Credit~~ the Amendment No. 3 Term Loans, as applicable), ~~and~~ (~~iii~~B) ~~with respect to any Dollar~~then-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be current market terms (as determined by the ~~Borrowers~~ 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 ~~Lenders providing such New Term Facility and shall not be more than 75 basis points higher~~ related Revolving Credit Loans, other than the ~~corresponding All-~~Maturity Date and as set forth in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis pointsthis Section 2.14(e); provided that notwithstanding anything to the contrary in this ~~clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to~~ Section 2.14 or ~~less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o~~otherwise:

Appears in 1 contract

Sources: Credit Agreement (Mirion Technologies, Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower or any Subsidiary Guarantor may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (such Person (who may be (i) ~~may be~~ the Administrative ~~Agent, if it so agrees,~~ Agent or (ii) any other Person appointed by the ~~Parent~~ Borrower), the “Incremental Arranger”) specifying the proposed Borrower, the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 loan facilities (including incremental delayed draw term facilities), in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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 (xw) the greater of (A) $~~100,000,000~~ 20,000,000 and (B) 20% of Four Quarter Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (yx) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (zy) an amount equal to the sum of: (~~i)(A~~i) (A) all voluntary prepayments of ~~(1)~~ pari passu Term Loans (including, for the avoidance of doubt, any New Term Loans that are pari passu in right of payment and security with the Initial Term Loans) made pursuant to Section 2.05(a) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (~~B) all repurchases and/or cancellations of ~~(1)~~ pari passu Term Loans (including, for the avoidance of doubt, any New Term Loans) made pursuant to the terms hereof ~~and (2) New Incremental Notes that are secured on a pari passu basis with~~ in an amount equal to the ~~Term Loans~~principal amount so prepaid, (ii) voluntary prepayments of ~~all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of~~ Revolving Credit Loans (including, for the avoidance of doubt, any New Revolving Loans) made pursuant to Section 2.05(a) to the extent accompanied by a ~~corresponding,~~ 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility), intercompany Indebtedness and the Prepayment-Based Incremental Facility being incurred) and (iii) in the case of ~~any such prepayment~~ New Term Facility or ~~repurchase at a price below par, based on~~ New Revolving Facility that serves to effectively extend the ~~amount~~ Maturity Date of the ~~actual cash expenditure~~ Facilities, an amount equal to the reductions in the Facilities to be replaced with such New Term Facility or New Revolving Facility, as applicable (the “Prepayment-Based Incremental Facility”) (such sum, at any such ~~time~~time and subject to Section 1.02(i), the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 ~~or, in the 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:~~ 2.14: (A) At the ~~Borrowers~~ Borrower’s option, 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 Borrowers shall be deemed to have used~~ the Ratio-Based Incremental Facility (to the extent compliant therewith) ), prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility, and the Borrower shall be deemed to have used the Prepayment-Based Incremental Facility prior to utilization of the Cash-Capped Incremental ~~Facility and the Prepayment-Based Incremental~~ Facility, , (B) New Loan Commitments pursuant to this Section 2.14 ~~and New Incremental Notes pursuant to Section 2.15~~ may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by or series of related transactions by, at the Borrower’s option, first calculating the incurrence under the Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the PrepaymentRatio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility, the Prepayment-Based Incremental Facility or any amounts substantially concurrently incurred under Section 7.01 (other than any Ratio Debt incurred pursuant to Section 7.01 (including, without limitation, pursuant to clause (o) ~~and/or~~ thereof)) or as a concurrent borrowing under the then existing Revolving Credit Facility and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash-Capped Incremental Facility) and then calculating the incurrence under the Cash-Capped Incremental Facility, , (C) ~~the Borrowers may redesignate~~ all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility ~~as having been~~ shall automatically cease to be deemed incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility (unless otherwise indicated by the Borrower) and shall instead be deemed incurred under the Ratio-Based Incremental Facility ~~so long as, at~~ from and after the ~~time of such redesignation,~~ first date on which the ~~Borrowers~~ Borrower would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such 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 or and/or the Prepayment-Based Incremental Facility, as applicable, by all or such portion, as applicable, of the aggregate principal amount of such ~~redesignated~~ Indebtedness), unless the Borrower elects otherwise; ~~provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and~~ and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage ~~Ratio or~~ Ratio, the Consolidated Total Net Leverage Ratio or the Interest Coverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash ~~proceeds~~proceeds incurred pursuant to this Section 2.14 being incurred at such test date in calculating such Consolidated First Lien Net Leverage Ratio, Consolidated Senior Secured Net Leverage Ratio or Consolidated Total Net Leverage Ratio shall be excluded for purposes of calculating cash or Cash Equivalents. The Borrower may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as such Borrower may deem appropriate. (b) For the avoidance of doubt, the Borrower will not be obligated to approach any Lender to participate in any New Loan Commitments. Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The ~~Borrowers~~ 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,~~ Agent and 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~~ consent shall not be unreasonably withheld, ~~conditioned~~ delayed or ~~delayed~~conditioned) to become Lenders pursuant to a joinder agreement to this Agreement. ~~Neither the Administrative Agent nor the~~ The Collateral Agent (in ~~their respective capacities~~ its capacity as such) shall not be required to ~~execute, accept or acknowledge~~ execute 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the ~~Borrowers~~ 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 ~~Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)~~Borrower) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for~~ herein pursuant to the ~~avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate~~ documentation 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~~ 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 2.07(b) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the ~~Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)~~Borrower) 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) subject to Section 1.02(i), no Event of Default (~~subject~~ or, with respect to a Limited Condition Transaction, an Event of Default under Section ~~1.02(i~~8.01(f) ~~in connection~~ or (g) with ~~any acquisition Investment, Restricted Payment or other transaction permitted pursuant~~ respect to ~~this Agreement as described in Section 1.02(i)~~the Borrower) 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) ~~other than with respect to any Extendable Bridge Loans,~~ the final maturity shall be no earlier than the Maturity Date applicable to the Revolving Credit Facility, and (2) no amortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required, (C) in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans, Specified Refinancing Term Loans or Extended Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the longest remaining Weighted Average Life to Maturity of, any other outstanding Term Loans, New Term Loans, Specified Refinancing Term Loans or Extended Term Loans, as applicable; provided, that Extendable Bridge Loans/Interim Debt may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and, with respect to Extendable Bridge Loans/Interim Debt, the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, and (D) in the case of any New Term Facility, other than in the case of Extendable Bridge Loans/Interim Debt, such New Term Facility shall have a final maturity no earlier than the then Latest Maturity Date of any Term Loan Tranche and the Weighted Average Life to Maturity of such New Term Facility shall be no shorter than that of any existing Term Loan Tranche; (iii) [reserved]; and (iv) [reserved]. Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be solely those agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrower. Notwithstanding the foregoing, (x) to the extent any terms of any Term Commitment Increase, Revolving Credit Commitment Increase, New Term Facility or New Revolving Facility are more favorable to the new lenders than comparable terms existing in the Loan Documents, such terms (if favorable to the existing Lenders) may 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, the Borrower may, but shall not be required to, increase the Applicable Rate or amortization payments relating to any existing Term Facility to bring such Applicable Rate in line with the relevant Term Commitment Increase or New Term Facility to achieve fungibility with such existing Term Facility), (y) the terms of any New Revolving Facility or New Term Facility shall be substantially identical to the Revolving Credit Facility and the Term Facility, respectively, except for (i) terms that are applicable only after the then Latest Maturity Date of the Revolving Credit Facility and the Term Facility, respectively, (ii) such terms as may be included subject solely as to administrative matters and subject to the Administrative Agent’s consent (such consent not to be unreasonably withheld, delayed or conditioned) and (iii) terms that reflect market terms and conditions (taken as a whole) at the time of incurrence, issuance or effectiveness (as determined by the Borrower in good faith) and (z) the terms of any New Term Facility or New Revolving Facility, to the extent favorable to the Lenders under the Revolving Credit Facility or existing Term Facility, as applicable, may be incorporated if otherwise reasonably satisfactory to the Borrower. To the extent the Borrower establishes a New Revolving Facility, then the Administrative Agent and such Borrower shall be permitted to amend this Agreement to require borrowings and repayments on a pro rata basis among Revolving Tranches (except for (A) payments of interest and fees at different rates on the Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Maturity Date of any Revolving Credit Loan, and (C) repayments made in connection with a permanent repayment and termination of the Revolving Credit Loans or Revolving Credit Commitments of Revolving Credit Loans after the effective date of such New Revolving Facility). (e) On the Increase Effective Date with respect to an increase to an ~~existing~~ Existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations ~~represented by such Revolving Commitment Increase Lender~~ will equal the ~~percentage~~ Pro Rata Share of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o

Appears in 1 contract

Sources: Credit Agreement (Townsquare Media, Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Parent and/or the Borrower may, from time to time after the Closing Date, upon notice by the Borrower and/or the Parent ~~Borrower~~ (as applicable) to the Person appointed by the Borrower and/or the Parent (as applicable) to arrange an incremental ~~Facility~~ facility (such Person (who may be (i) ~~may be~~ the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the ~~Parent Borrower),~~ Borrower the “Incremental Arranger”) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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~~ clauses (c) and (d) below or, subject to the terms of clause (f)(iii) below, with respect to ~~amortization~~any fees or original issue discount payable to the lenders providing such increase)) (each, a “Term Commitment Increase”), (~~iii~~ii) the addition of one or more new revolving credit facilities to the ~~Facilities~~Facility, 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 (iviii) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” ~~and~~ and, together with ~~the Revolving Credit Commitment Increase,~~ the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) in by an amount not to exceed (including any unused amount thereof, in the case of any proposed New Revolving Facility) the sum of (~~x) the~~ x)the greater of (A) $100,000,000 and (B) 100% of Four Quarter Consolidated EBITDA ~~for the most recently ended four fiscal quarter period for which internal financial statements are available~~ (~~and~~ after giving effect to any acquisition or Investment consummated ~~concurrently therewith~~ or to be consummated, including with the proceeds of any New Term Loan, New Revolving Loan or otherwise, on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section ~~1.10~~1.11) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of ~~(1)~~ Term Loans made pursuant to Section 2.05(a) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (~~B) all voluntary repurchases of ~~(1)~~ Term Loans made pursuant to the terms hereof ~~and (2) New Incremental Notes that are secured on a pari passu basis with~~ in an amount equal to the face amount of the Term ~~Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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)~~repurchased, in each case, to the extent not 116 funded with the proceeds of long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit ~~facility (including the Revolving Credit Facility)~~facility) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) a Dollar Amount equal to $~~5,000,000 or,~~ 10,000,000 (in the case of ~~any~~ Term Commitment Increases or New ~~Loan Commitments denominated~~ Term Facilities) or a Dollar Amount equal to $5,000,000 (in ~~an Alternative Currency,~~ the ~~Alternative Currency Equivalent~~ case of ~~such amount,~~ New Revolving Facilities) 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~~ Equivalent Debt incurred pursuant to Section 2.15: , (A) unless the ~~Borrowers~~ Borrower or the Parent (as applicable) elects otherwise, the Borrower or the Parent (as applicable) shall be deemed to have used (x) amounts under ~~the Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used~~ the Ratio-Based Incremental Facility (to the extent ~~compliant therewith~~permitted by the pro forma calculation of the applicable ratio) prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility and (y) amounts under the Prepayment-Based Incremental Facility prior to the Cash-Capped Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt pursuant to Section 2.15 may be incurred under the Cash-Capped Incremental Facility, the Ratio-Based Incremental ~~Facility (to the extent compliant therewith)~~Facility, ~~the Cash-Capped Incremental Facility and~~ and/or the Prepayment-Based Incremental ~~Facility,~~ Facility and proceeds from any such incurrence under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility, and/or the Prepayment-Based Incremental Facility may be utilized in a single transaction by first calculating (x) the incurrence under the Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the PrepaymentRatio-Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ utilized ~~pursuant to~~ under the Cash-Capped Incremental Facility, the Prepayment-Based Incremental Facility and/or any amounts substantially concurrently incurred under Section 7.01 (other than any Ratio Debt incurred pursuant to Section 7.01 (including, pursuant to clause (o) ~~and/or~~ thereof)) and then calculating the incurrence under the Cash-Capped Incremental ~~Facility,~~ Facility and/or the Prepayment-Based Incremental Facility and (Cy) the ~~Borrowers may redesignate~~ incurrence under the Prepayment-Based Incremental Facility and then calculating the incurrence under the Cash-Capped Incremental Facility and (C)(i) all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility ~~as having been~~ shall automatically cease to be deemed incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility and shall instead be deemed incurred under the Ratio-Based Incremental Facility ~~so long as, at~~ from and after the ~~time of such redesignation,~~ first date on which the ~~Borrowers~~ Borrower or the Parent (as applicable) would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such 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 or and/or the Prepayment-Based Incremental Facility, as applicable, by the ~~amount~~ Dollar Amount of such redesignated Indebtedness~~); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause~~ ) and (C)ii) Parent may otherwise classify, and ~~(D) solely for the purpose~~ may later reclassify, all or any portion of ~~calculating the Consolidated First Lien Net Leverage Ratio~~Indebtedness as incurred as a Prepayment-Based Incremental Facility, ~~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 or Cash-Capped Incremental Facility on the ~~time~~ date of ~~incurrence,~~ incurrence and thereafter to the extent otherwise permitted on the date of such classification (or the date of any ~~cash proceeds~~such reclassification). Parent may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as the Borrower may deem appropriate. (b) 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~~ 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, 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, conditioned or delayed) Agent to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative 117 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 ~~Borrowers~~ Borrower must provide to the Administrative Agent ~~(x)~~ the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestCommitments. (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 ~~Borrowers shall~~ Incremental Arranger and the Borrower or the Parent (as applicable)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~~ Borrower or the Parent (as applicable) and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche ~~or Revolving Tranche~~ and to reflect any technical changes ~~necessary~~ necessary, advisable or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for~~ herein pursuant to the ~~avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate~~ documentation 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~~ or New Revolving Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the ~~Borrowers~~ Borrower or the Parent (as applicable) and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to (x) add any call protection applicable to any existing Term Loan Tranche being increased and/or (y) 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 Specified Event of Default (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist immediately after giving effect to such increase; (ii) ) (A) in the case of any increase of ~~the Revolving~~ a Term Loan Tranche, ~~(1)~~ 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 unless the Term Lenders are also offered by the Borrower or the Parent (as applicable) the same amortization amounts for the corresponding year (provided that each Term Lender will be deemed to have rejected such offer unless such Term Lender notifies the Administrative Agent that it has accepted such offer by 11 a.m. five (5) Business Days (or such longer period which the Borrower or the Parent (as applicable) agrees) after the date of such offer; provided, (x) that Extendable Bridge Loans/Interim Debt may have a maturity date earlier than the Latest Maturity Date ~~applicable~~ of all 118 then outstanding Term Loans and the Weighted Average Life to Maturity of Extendable Bridge Loans/Interim Debt may be shorter than the ~~Revolving Credit Facility, (2) no amortization or mandatory commitment reduction prior~~ then longest remaining Weighted Average Life to ~~the~~ Maturity ~~Date applicable to the Revolving Credit Facility shall be required~~ of any then outstanding Term Loans and (3y) the ~~terms~~ requirements in this clause (A) shall not apply to any Ratio-Based Incremental Facility and ~~documentation applicable to the Revolving Credit Facility shall apply,~~ (B) in the case of any New ~~Revolving~~ Term Facility, ~~(1)~~ other than ~~with respect to any~~ in the case of Extendable Bridge Loans/Interim Debt and any Ratio-Based Incremental Facility, ~~the~~ such New Term Facility shall have a final maturity ~~shall be~~ 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 unless the Term Lenders are also offered by the Borrower or the Parent (as applicable) the same amortization amounts for the corresponding year (provided that each Term Lender will be deemed to have rejected such offer unless such Term Lender notifies the Administrative Agent that it has accepted such offer by 11 a.m. five (5) Business Days (or such longer period which the Borrower or the Parent (as applicable) agrees) after the date of such offer and (iii) except as set forth in clause (f)(iii) below with respect to All-In Yield and with respect to final maturity and Weighted Average Life to Maturity, or otherwise agreed with the Incremental Arranger in the documentation relating to such New Term Facility or New Revolving Facility, any such New Term Facility shall have the same terms as any Term Facility and any New Revolving Facility shall have the same terms as any comparable term of any Term Facility; provided, that notwithstanding the foregoing, such terms may differ from the terms of any Term Facility so long as agreed between the Borrower or the Parent (as applicable) and the lenders providing such New Term Facility or New Revolving Facility and so long as such different terms (w) to the extent more favorable to the existing Lenders than comparable terms existing in the Loan Documents, as reasonably determined by Parent in consultation with the Administrative Agent are 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 Parent, 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, (x) are applicable only to periods after the Latest Maturity Date of the Term Facilities existing at the time of the incurrence of such indebtedness, (y) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by Parent in good faith) or (z) are reasonably satisfactory to the Borrower or the Parent (as applicable), the Incremental Arranger and the Administrative Agent. Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be solely those agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrower. (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so ~~that~~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~~ Subject to the Agreed Security Principles, 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 the Borrower or a Guarantor under each of the other Facilities, and be ~~unsecured or~~ 119 unsecured, secured either on a ~~pari passu~~ first lien “equal and ratable” basis with the other Facilities or on a “junior” basis to with the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in each case, the ~~case~~ application of any proceeds of the Collateral securing such ~~junior secured~~ New Revolving Facility or New Term ~~Facility~~Facility shall, if documented in an agreement that is separate from this Agreement, be subject to an Acceptable Intercreditor Agreement), but if unsecured or secured on a “junior” basis to the other Facilities, such New Revolving Facility or New Term Facility shall be ~~subject to intercreditor arrangements~~ documented in an agreement that ~~are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger~~ is ~~not the Administrative Agent, the Administrative Agent)~~separate from this Agreement, (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~~ any Term ~~Facility or Revolving Credit~~ Facility~~, as the case may be~~, unless the ~~Borrowers~~ Borrower or the Parent (as applicable) otherwise ~~elect~~ elects (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oLoan

Appears in 1 contract

Sources: Credit Agreement (Farfetch LTD)

Incremental Facilities. ~~(a)~~ The ~~Borrowers may, from time~~ Borrower Representative may by written notice to the Administrative Agent at any time after the ~~Closing~~ Restatement Date elect to request (A) prior to the Revolving Commitment Termination Date, ~~upon notice by the Parent Borrower~~ an increase to the ~~Person appointed by the Borrower to arrange an incremental Facility~~ existing Revolving Commitments (any such ~~Person (who (i) may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower)~~increase, the “Incremental ~~Arranger~~Revolving Commitments”) ~~specifying the proposed amount thereof and the proposed currency denomination thereof, request~~ and/or (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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”), (iiiB) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (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 establishment of one or more new term loan ~~facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ commitments (~~each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof,~~ the “~~New~~ Incremental Term ~~Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New~~ Loan Commitments”~~) in~~ ), by an aggregate amount not to exceed (1) the sum of (x) ~~the greater of (A)~~ $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), 1,350,000,000 plus (y) ~~an unlimited~~ the aggregate amount ~~(the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A)~~ of all voluntary prepayments of ~~(1)~~ Term Loans ~~made~~ and Revolving Loans pursuant to Section ~~2.05(a~~2.13(a) (to the extent, in the case of voluntary prepayments of Revolving Loans, there is an equivalent permanent reduction of the Revolving Commitments pursuant to Section 2.13(b)), plus (z) the aggregate amount of Revolving Commitments of any Lender that was a Defaulting Lender that have been terminated, plus (2) an additional unlimited amount so long as, after giving pro forma effect to the incurrence of such Incremental Revolving Commitments and/or Incremental Term Loan Commitments and the consummation of any Investment or acquisition, repayment of any Indebtedness or payment or making of any Restricted Payment with the Net Cash Proceeds thereof (assuming a borrowing of the maximum amount of Loans available thereunder, but otherwise excluding the Net Cash Proceeds of any such Incremental Term Loan Commitments or Incremental Revolving Commitments), the Senior Secured Net Leverage Ratio would not exceed 3.00:1.00, and, in each case, not less than $25,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the maximum amount then permitted to be incurred pursuant to clauses (1) and (2) ~~New~~ above on such date of determination), and integral multiples of $10,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower Representative proposes that the Incremental ~~Notes that are secured~~ Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days after the date on ~~a pari passu basis with~~ which such notice is delivered to the ~~Term Loans~~ Administrative Agent and (B) ~~all repurchases~~ the identity of ~~(1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all~~ each Lender or other ~~Indebtedness secured by a Lien~~ Person that is ~~pari passu with the Liens securing the Obligations and~~ an Eligible Assignee (~~iii) voluntary prepayments of~~ each, an “Incremental Revolving ~~Credit Loans made pursuant to Section 2.05(a~~Loan Lender” or “Incremental Term Loan Lender”, as applicable) to whom 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or Borrower Representative proposes any portion of ~~Indebtedness originally designated as incurred under the Cash-Capped~~ such Incremental ~~Facility~~ Revolving Commitments or ~~the Prepayment-Based~~ Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental FacilityTerm Loan Commitments, as applicable, by be allocated and the ~~amount~~ amounts of such ~~redesignated Indebtedness)~~allocations; ~~provided,~~ provided that the Administrative Agent may elect or decline to arrange such ~~Indebtedness shall be automatically redesignated to the extent that, at the end of~~ Incremental Revolving Commitments or Incremental Term Loan Commitments in its sole discretion and any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (b) Any Lender approached to ~~participate in any New~~ provide all or a portion of the Incremental Revolving Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to ~~participate in~~ provide an Incremental Revolving Commitment or an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as of such ~~increase~~ Increased Amount Date; provided that: (1) no Default or ~~new facility. The Borrowers may also invite additional Eligible Assignees reasonably satisfactory~~ Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (2) both before and after giving effect to the incurrence of such Incremental ~~Arranger and~~Revolving NY\6180200.13 Commitments and/or Incremental Term Loan Commitments, ~~solely~~ each of the conditions set forth in Section 3.02 shall be satisfied; (3) the U.S. Borrower shall be in pro forma compliance with each of the covenants set forth in Section 6.07 as of the last day of the most recently ended Fiscal Quarter after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, and the consummation of any Investment or acquisition, repayment of any Indebtedness or payment or making of any Restricted Payment with the Net Cash Proceeds thereof (assuming a borrowing of the maximum amount of Loans available thereunder, but otherwise excluding the Net Cash Proceeds of any such Incremental Term Loan Commitments or Incremental Revolving Commitments); (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the applicable Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Revolving Commitments; (6) the applicable Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) as reasonably requested by the Administrative Agent in connection with any such transaction; and (7) the applicable Borrower shall have paid all fees and expenses owing to the Agents and the Lenders in respect of such Incremental Revolving Commitments or Incremental Term Loan Commitments; provided that, to the extent the proceeds of any Incremental Term Loans are being used to finance a ~~Revolving Credit Commitment Increase~~ Permitted Acquisition or ~~New Revolving Facility~~other Investment permitted hereunder, with the consent of the ~~Administrative Agent~~Borrower Representative and the applicable Incremental Term Loan Lender(s), ~~each L/C Issuer~~ clauses (1) and (2) above shall not apply so long as on the date of the incurrence of such Incremental Term Loans, the Specified Representations shall be true and correct in ~~each case,~~ all material respects as of the date of such incurrence except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date; (it being understood that to the ~~consent~~ extent any such representation and warranty is already qualified by materiality or material adverse effect, such representation and warranty will be true and correct in all respects). Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing ~~would be required to assign Revolving Credit Loans or Term Loans~~terms and conditions, ~~as applicable, to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed~~(a) 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice each of the ~~identity~~ Lenders with Revolving Commitments of ~~any new Lender; provided further, that such new Lender~~ the same Class shall ~~agree~~ assign to ~~provide applicable “know your customer”, anti-money laundering rules and regulations, including~~ each of the ~~Patriot Act~~Incremental Revolving Loan Lenders, and ~~other customary onboarding information reasonably requested by~~ each of the ~~Administrative Agent upon request. (c) If (i) a~~ Incremental 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 Borrowers~~ Lenders shall ~~determine the effective date (the “Increase Effective Date”) and the final allocation~~ purchase from each of such ~~increase, New Term Facility or New Revolving Facility among the applicable~~ Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the ~~option of the Parent Borrower~~principal amount thereof (together with accrued interest), ~~with respect to any increase~~ such interests in the ~~Applicable Rate relating to any existing Term Facility to bring~~ applicable Revolving Loans outstanding on such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) Increased Amount Date as shall be ~~amended~~ necessary in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such order that, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstandingpurchases, such Revolving ~~Credit~~ Loans ~~shall on or prior to~~ will be held by existing Lenders with Revolving Commitments of the ~~Increase Effective Date be prepaid from the proceeds of~~ same Class and Incremental Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender Loan Lenders ratably 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 their Revolving Commitments after giving effect to the ~~transactions effected pursuant~~ addition of such Incremental Revolving Commitments to the ~~immediately preceding sentence. The additional Term Loans made under~~ Revolving Commitments of the ~~Term Loan Tranche subject to the increases~~ applicable Class, (b) each Incremental Revolving Commitment shall be ~~made by~~ deemed for all purposes a Revolving Commitment of the applicable ~~Lenders participating therein pursuant to the procedures set forth in Sections 2.01~~ Class 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~~ each Loan made thereunder (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oNY\6180200.13

Appears in 1 contract

Sources: Credit Agreement (PVH Corp. /De/)

Incremental Facilities. (a) The ~~Borrowers may,~~ Borrower may from time to time on or after the Closing Date, ~~upon~~ by written notice ~~by the Parent Borrower~~ to ~~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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof~~, request (i) an increase in to the existing Initial2026 Extended Revolving Credit Commitments ~~under~~ (any such increase, the “New Revolving Commitments” and any Revolving ~~Tranche (which shall be on the same terms as, and become part of~~Loans thereunder, the “New Revolving ~~Tranche proposed to be increased~~Loans”) ~~(a “Revolving Credit Commitment Increase”),~~ and/or (ii) an increase ~~in any~~ to an existing Class of Term ~~Loan Tranche then outstanding (which shall be on~~ Loans and/or 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 establishment of one or more ~~new revolving credit facilities to~~ Term Loan Commitments hereunder (the ~~Facilities~~“New Term Loan Commitments,” and collectively with any New Revolving Commitments, ~~in each case~~the “New Commitments” and each, ~~in such currency or currencies as the Parent Borrower identifies in such notice (each~~individually, 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~~), in ~~each~~ any 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~~ in excess of the sum of (x) the ~~greater~~ Incremental Starter Basket plus (y) the aggregate principal amount of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (and after giving effect to any acquisition consummated concurrently therewith additional New Commitments so long as, on a Pro Forma Basis ~~and all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.10)~~ (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 orassuming, in the case of any New ~~Loan Commitments denominated in an Alternative Currency~~Commitments, ~~the Alternative Currency Equivalent of such amount, and (y)~~ that the entire amount of ~~any~~ such New Revolving Commitments and New Term Loan Commitments were fully funded on the effective date of such increase ~~that may be requested under this Section 2.14; provided, further, that for purposes~~ and excluding the cash proceeds received by the Borrower in respect of any such New ~~Loan Commitments established pursuant~~ Commitments) and after giving effect 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant any Permitted Acquisitions consummated in connection therewith~~) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility~~, (B1) in the case of loans under such New ~~Loan~~ Commitments ~~pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under~~ secured by Liens on the ~~Ratio-Based Incremental Facility~~ Collateral that rank pari passu with the liens on the Collateral securing the Facilities (~~to the extent compliant therewith~~other than any such Liens that are junior), the ~~Cash-Capped Incremental Facility~~ First ▇▇▇▇ ▇▇▇▇▇ Leverage Ratio on a Pro Forma Basis does not exceed 2.00 to 1.00 and (2) in the ~~Prepayment-Based Incremental Facility, and proceeds from any~~ case of loans under such ~~incurrence may be utilized in a single transaction~~ New Commitments secured by ~~first calculating the incurrence under the Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant~~ Liens that rank junior to the ~~Cash-Capped Incremental Facility or~~ Liens on the ~~Prepayment-Based Incremental Facility) and then calculating~~ Collateral securing the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignationFacilities, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or on a Pro Forma Basis does not exceed 4.50 to 1.00 and (3) in the ~~Consolidated~~ case of loans under such New Commitments that are unsecured, the Total Net Leverage Ratio on a Pro Forma Basis does not exceed 5.00 to ~~determine~~ 1.00, plus (z) the ~~availability under~~ aggregate amount of all voluntary prepayments of the ~~Ratio-Based Incremental Facility at~~ Term Loans outstanding on the Closing Date and Revolving Loans in respect of Revolving Commitments outstanding on the Closing Date (and not in excess of $225,000,000) 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 ~~incurrence~~Indebtedness. 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 ~~cash proceeds~~ 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 (band/or its Affiliates) ~~Any~~ may elect or decline to arrange such New Revolving Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to ~~participate in any~~ provide all or a portion of the New Revolving Commitments or New Term 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~~ provide a ~~Revolving Credit Commitment Increase or~~ New Revolving ~~Facility~~Commitment or a New Term Loan Commitment; provided, ~~with the consent of the Administrative Agent~~further, ~~each L/C Issuer (in each case~~that, to the extent the consent of any of the foregoing would be required to assign Revolving Credit Loans or Term Loans, as applicable, to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be party hereto is required for ~~any~~ a proposed assignment under Section 10.4(b)(iii), such ~~joinder agreement to be effective; provided that, with respect~~ consent requirement shall apply to any New ~~Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for~~ Lender under this Section 2.24 as though such New ~~Loan~~ Lender were a proposed assignee under Section 10.4(b)(iii). All New Commitments ~~and (y) a notice~~ shall become effective as of ~~the identity of any new Lender~~such Increased Amount Date; ~~provided further~~provided, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) ~~a Revolving Tranche~~ no Default or ~~a Term Loan Tranche is increased in accordance with this Section 2.14~~ Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Commitments; (ii) ~~a New Term Facility or New Revolving Facility is added~~ the representations and warranties set forth in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents ~~may~~ shall be ~~amended~~ true and correct as in all material respects of 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 ~~writing~~ Compliance Certificate setting forth in reasonable detail the calculations of the First ▇▇▇▇ ▇▇▇▇▇ Leverage Ratio, Senior Secured Net Leverage Ratio or the Total Net Leverage Ratio, as applicable, and executed by a Responsible Officer of the Borrower certifying the requirements of such sub-clause (~~which may~~ 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 ~~Borrowers~~ Borrower, such New Lender, and the ~~Incremental Arranger (~~Administrative Agent, and each of which shall be recorded in the ~~Lenders hereby authorize the any such Incremental Arranger to execute~~ Register and ~~deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases~~ shall be subject to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased requirements set forth in Section ~~2.07(a~~2.20(g); (v) ~~(or~~ the Borrower shall make any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such datepayments required, 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 Increaseif any, ~~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)~~ 2.19 in connection with ~~any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)~~the New Revolving Commitments; (vi) ~~would exist~~ both before and 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 making of any New ~~Revolving Facility, (1) other than with respect to any Extendable Bridge~~ Loans, ~~the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x)~~ each ~~Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion~~ of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures conditions 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~~ Section 3.2 shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then osatisfied;

Appears in 1 contract

Sources: Credit Agreement (E.W. SCRIPPS Co)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, ~~upon~~ by notice ~~by the Parent Borrower~~ to the ~~Person appointed by the Borrower to arrange an incremental Facility (such Person~~ Administrative Agent (who ~~(i) may be~~ shall promptly notify the ~~Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”~~applicable Lenders) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request 83894470_5 (i) an increase in the Commitments under any Revolving ~~Tranche~~ Facility (which shall be on the same terms as, and become part of, the Revolving ~~Tranche~~ Facility 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 (dc) below with respect to amortization)) (each, a “Term Commitment Increase”), ) and (iii) the addition of one or more new ~~revolving credit~~ term loan 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice 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~~ Increase and the Term Commitment Increase, the “New Loan Commitments”) in by an amount not to exceed the sum of (x) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Dollar Capped Incremental ~~Facility”),~~ Amount plus (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loansas, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of ~~any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ this clause (~~the “Prepayment-Based Incremental Facility”~~y) (subject to the Limited Condition Acquisition Proviso in connection with any Permitted Acquisition or permitted Investment that constitutes an acquisition (other than an intercompany Investment)), the Maximum Secured Net Leverage Requirement is satisfied plus (z) the Prepay Incremental Amount (such ~~sum~~aggregate 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 (xA) a Dollar Amount of $5,000,000 ~~or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ and (yB) 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:~~ 2.15 will reduce the Incremental Amount, provided that such amounts shall (A1) reduce the ~~Borrowers shall be deemed to have used amounts~~ maximum amount under the ~~Prepayment-Based~~ Prepay Incremental ~~Facility, if any,~~ Amount prior to ~~utilization of~~ reducing the ~~Cash-~~maximum amount under the Dollar Capped Incremental ~~Facility, and the Borrowers shall be deemed to have used~~ Amount or counting towards the Ratio-Based Incremental Facility and (~~to the extent compliant therewith~~2) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under count towards the Ratio-Based Incremental Facility prior to reducing the maximum amount under the Dollar Capped Incremental Amount (to the extent ~~compliant therewith),~~ permitted by the ~~Cash-Capped Incremental Facility and~~ Secured Net Leverage Ratio calculated on a Pro Forma Basis required prior to the ~~Prepayment~~incurrence of such Ratio-Based Incremental Facility); provided, ~~and proceeds from any such incurrence~~ further, that Loans may be ~~utilized~~ incurred under clauses (x), (y) and (z) above in a single transaction ~~by first calculating the incurrence under the Ratio- Based Incremental Facility (without inclusion~~ in any order of ~~any amounts substantially concurrently utilized~~ use permitted pursuant to ~~the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility~~clauses (1) and ~~then calculating the incurrence under the Prepayment-Based Incremental Facility~~ (~~without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility~~2) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility (whichabove without, for the avoidance of doubt, ~~shall have~~ being required to include amounts utilized under the ~~effect of increasing the Cash-~~Dollar Capped Incremental ~~Facility or~~ Amount and/or the ~~Prepayment-Based~~ Prepay Incremental ~~Facility, as applicable, by~~ Amount in the ~~amount~~ calculation of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at if such amounts are being used in a single incurrence of a New Loan Commitment. At the time of ~~incurrence~~sending such notice to the applicable Lenders, ~~any cash proceeds~~the Borrower (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 ~~to participate in any New Loan Commitments~~ may elect or decline, in its sole discretion, to ~~participate in~~ 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 ~~Borrowers~~ Administrative Agent shall notify the Borrower 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 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, the Swingline Lender and 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,~~ and/or Commitments to such Eligible Assignee, which ~~consents~~ consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed) to become Lenders pursuant to a joinder agreement to this ~~Agreement. Neither the Administrative Agent nor the Collateral Agent (~~Agreement in ~~their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14~~ form 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are substance reasonably satisfactory to the ~~Incremental Arranger and, if such Incremental Arranger is not the~~ Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o.

Appears in 1 contract

Sources: Credit Agreement (Medpace Holdings, Inc.)

Incremental Facilities. (a) The Borrowers may, from time to time after the Closing Date, upon notice by the Parent Borrower to 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 Parent Borrower), the “Incremental Arranger”)~~ Agent specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in ~~the Commitments under~~ any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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)~~hereunder) (each, a “~~Term~~ Commitment Increase”), (iii) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (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 (ivii) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New ~~Term~~ Facility”; and any advance made by a Lender thereunder, a “New ~~Term~~ Loan”; and the commitments thereof, the “New ~~Term~~ 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 ~~greater~~ amount incurred prior to the date of ~~(A) $100,000,000 and (B) Consolidated EBITDA for~~ incurrence thereof under the most recently ended four fiscal quarter period for which internal financial statements are available (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) First Lien Cash-Capped Incremental Amount (the “Cash-Capped Incremental Facility”), ) and (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount~~3,500,000, 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~~ Commitment 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental ~~Facility and the Prepayment-Based Incremental~~ Facility, , (B) New ~~Loan~~ Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), ) and 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 Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the PrepaymentRatio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) ~~and/or~~ and then calculating the incurrence under the Cash-Capped Incremental Facility, and (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating ~~the Consolidated First Lien Net Leverage Ratio,~~ the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash ~~proceeds~~proceeds incurred pursuant to this Section 2.14 and/or New Incremental Notes being incurred at such test date in calculating such Consolidated Senior Secured Net Leverage Ratio or Consolidated Total Net Leverage Ratio shall be excluded. The Borrowers may designate any Person (such Person, the “Incremental Arranger”) with such titles under the New Commitments as Borrowers may deem appropriate. (b) Any Lender approached to participate in any New ~~Loan Commitments~~ Commitment 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, 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, conditioned or delayed) Agent 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a ~~Revolving Tranche or a Term Loan~~ Tranche is increased in accordance with this Section 2.14 or (ii) a New ~~Term Facility or New Revolving~~ Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New ~~Term Facility or New Revolving~~ Facility among the applicable Lenders~~. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date~~. In connection with (i) any increase in a ~~Term Loan Tranche or Revolving~~ Tranche or (ii) any addition of a New ~~Term Facility or New Revolving~~ Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents ~~may~~ shall be amended in a writing (which ~~may~~ shall be executed and delivered by the Borrowers and the ~~Incremental Arranger~~ Administrative Agent (and the Lenders hereby authorize the ~~any such Incremental Arranger~~ 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, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any ~~Revolving Credit Commitment Increase, Term~~ Commitment Increase or addition of a New ~~Term Facility or New Revolving~~ Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition ~~Investment, Restricted Payment~~ or ~~other transaction permitted pursuant to this Agreement as described in Section 1.02(i)~~investment) would exist after giving effect to such increase; (ii) ) (A) in the case of any increase of ~~the Revolving~~ a Tranche, ~~(1)~~ the final maturity of the Loans, New Commitments or Specified Refinancing Loans increased pursuant to this Section shall be no earlier than the ~~same as the~~ Latest Maturity Date ~~applicable~~ for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the ~~Revolving Credit Facility~~longest remaining Weighted Average Life to Maturity of, ~~(2) no amortization~~ any other outstanding Loans, New Loans or ~~mandatory commitment reduction prior to~~ Specified Refinancing Loans, as applicable; provided that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date ~~applicable to the Revolving Credit Facility shall be required~~ of all then outstanding Loans and ~~(3) the terms and documentation applicable to the Revolving Credit Facility shall apply,~~ (B) in the case of any New ~~Revolving~~ Facility, (1) other than ~~with respect to any~~ in the case of Extendable Bridge Loans, ~~the~~ such New Facility shall have a final maturity ~~shall be~~ no earlier than the then Latest Maturity Date of any Tranche and (2) the Weighted Average Life to Maturity of such New Facility shall be no shorter than that of any existing Tranche; (iii) except with respect to All-in Yield and as set forth in subclause (D) above with respect to final maturity and Weighted Average Life to Maturity, any such New 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 Facility to bring such Applicable Rate in line with the New Facility to achieve fungibility with such existing 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 Commitment shall be agreed to by the Lenders providing such increase or New Commitment, as applicable, and the Borrowers. (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional ~~Term~~ Loans made under the ~~Term Loan~~ Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new ~~Term~~ Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding ~~Term~~ Loans under such ~~Term Loan~~ Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so ~~that~~that each Lender under such Tranche will participate proportionately in each then outstanding Borrowing of Loans under the Tranche. (i) Any New ~~Revolving Facility and New Term~~ Facility shall ~~rank pari passu in right of payment with the other Facilities,~~ not be ~~Guaranteed~~ guaranteed by any Person that is not a Borrower or Guarantor under each of the other Facilities, and be ~~unsecured or~~ unsecured, secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New ~~Revolving Facility or New Term~~ Facility, such New ~~Revolving Facility or New Term~~ Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the ~~Incremental Arranger and, if such Incremental Arranger is not the~~ Administrative Agent~~, the Administrative Agent)~~, (ii) the New ~~Term~~ Facility ~~or New Revolving Facility, as applicable,~~ shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the ~~Term~~ Facility ~~or Revolving Credit Facility, as the case may be,~~ unless the Borrowers otherwise elect (but in any event no more favorably than the existing ~~Term Loans or Revolving Credit~~ Loans~~, as applicable~~), and (iii) with respect to any ~~Dollar-denominated, floating rate~~ New ~~Term~~ Facility that is ~~pari passu in right of payments and~~ secured on a pari passu basis with ~~InitialTranche B Term Loans and is incurred on or prior to~~ the ~~date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility~~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 75 50 basis points higher than the corresponding All-in Yield payable by the Borrowers for the ~~InitialTranche B Term~~ Initial Loans, unless the All-in Yield with respect to the ~~InitialTranche B Term~~ Initial Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New ~~Term~~ Facility and the corresponding All-in Yield on the ~~InitialTranche B Term~~ Initial Loans is equal to 75 50 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o.

Appears in 1 contract

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

Incremental Facilities. ~~(a) The Borrowers may~~Subject to the terms and conditions set forth herein, the Borrower shall have the right, from time to time ~~after the Closing Date,~~ and upon at least ten (10) Business Days’ prior written notice by the Parent Borrower to 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (~~x) the documentation providing for such New Loan Commitments and~~ an “Incremental Request”), to request to incur one or more tranches of term loans (y) “Other Term Loans” and, together with any additional term loans under a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, then existing tranche incurred pursuant to this Section ~~2.14~~2.16, ~~this Agreement~~ the “Incremental Term Loans”; and any credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility”) and/or increase the ~~other Loan Documents may be amended in a writing~~ Aggregate Revolving Commitments (~~which may be executed~~ the “Incremental Revolving Commitments”; and ~~delivered by~~ revolving loans made thereunder the ~~Borrowers and~~ “Incremental Revolving Loans”); the Incremental ~~Arranger (and~~ Revolving Loans, together with the ~~Lenders hereby authorize~~ Incremental Term Loans are referred to herein as the “Incremental Facility Loans”), subject, however, in any such case, to satisfaction of the following conditions precedent: (i) the aggregate amount of all Incremental ~~Arranger~~ Revolving Commitments and Incremental Term Loans effected pursuant to ~~execute and deliver any such documentation)~~this Section 2.16 shall not exceed (A) ~~in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases~~ $200,000,000 plus (B) an unlimited amount so long as after giving effect to the ~~Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to~~ incurrence of such ~~increase or new facility in accordance with its terms as set forth herein, including, for~~ Incremental Facility Loans (assuming the ~~avoidance of doubt, at the option~~ full amount of the ~~Parent Borrower~~Incremental Facility Loans have been funded) and any related transactions, ~~with respect~~ on a Pro Forma Basis, the Consolidated Net Leverage Ratio, based on the last Fiscal Quarter ended for which financial statements have been delivered to ~~any increase in~~ the ~~Applicable Rate relating~~ Administrative Agent pursuant to ~~any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date~~Section 6.01(b), is less than 3.25:1.00; (ii) subject, in the case of an ~~increase~~ Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.08, on the date on which any Incremental Facility Amendment is to become effective, both immediately prior to and immediately after giving effect to the incurrence of such Incremental Facility Loans (assuming that the full amount of the Incremental Facility Loans shall have been funded on such date) and any related transactions, no Default shall have occurred and be continuing; (iii) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.08, after giving effect to the incurrence of such Incremental Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded) and any related transactions, on a Pro Forma Basis, the Loan Parties shall be in compliance with the financial covenants set forth in Article VII; (iv) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.08, the representations and warranties set forth in Article V shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) on and as of the date on which such Incremental Facility Amendment is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) as of such earlier date; (v) any Incremental Revolving Commitments shall be made on the same terms and provisions (other than upfront fees) as apply to the existing ~~Term Loan Tranche~~Revolving Commitments, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the ~~amortization schedule for the Term Loan Tranche then increased~~ existing revolving credit facility set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation2.01(b)) 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.; (dvi) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii)[reserved]; (Avii) in the case of any ~~increase~~ Other Term Loans, such Other Term Loans shall: (A) rank pari passu in right of payment priority with 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 applyexisting Loans, (B) (I) rank pari passu or junior in right of security with the existing Loans (subject, in the case of Other Term Loans secured on a junior basis, to an intercreditor agreement satisfactory to the Administrative Agent) and not be secured by any ~~New Revolving Facility~~assets other than the Collateral or (II) be unsecured , (1C) ~~other than with respect to~~ not be guaranteed by any ~~Extendable Bridge Loans~~Person that is not a Loan Party, ~~the final~~ (D) have a maturity ~~shall be~~ date that is no earlier than the Maturity Date ~~applicable~~for the Loans, and (E) have pricing and amortization as determined by the Borrower and the Lenders of such Other Term Loans; provided that, (i) any such Other Term Loan may include mandatory prepayments on account of asset sales, insurance and condemnation receivables, extraordinary receipts, debt issuances (other than permitted indebtedness) and excess cash flow on customary terms market for such provisions and (ii) the other terms and documentation in respect of any Other Term Loans will be reasonably satisfactory to the Administrative Agent and the Borrower; (eviii) On the ~~Increase Effective Date with respect~~ Administrative Agent shall have received additional commitments in a corresponding amount of such requested Incremental Facility Loans from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an ~~increase~~ additional commitment); and (ix) the Administrative Agent shall have received customary closing certificates, legal opinions and resolutions of the Loan Parties that it may reasonably request relating to the corporate or other necessary authority for such Incremental Facility Loans and the validity of such Incremental Facility Loans, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent. Each Incremental Term Facility and any Incremental Revolving Commitments shall be evidenced by an ~~existing Revolving Tranche~~amendment (an “Incremental Facility Amendment”) to this Agreement, giving effect to the modifications permitted by this Section 2.16 (~~x) each Revolving Credit Lender~~ and subject to the limitations set forth in the immediately ~~prior to such increase will automatically~~ preceding paragraph), executed by the Loan Parties, the Administrative Agent and ~~without further act be deemed to have assigned to~~ each Lender providing a portion of the ~~increase~~ Incremental Term Facility and/or Incremental Revolving Commitments, as applicable; which such amendment, when so executed, shall amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to the ~~Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”)~~Loan Documents, and ~~each~~ such ~~Revolving Commitment Increase Lender will automatically~~ other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and ~~without further act (except that each Revolving Commitment Increase Lender~~ credit extensions permitted by this Section 2.16. Neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be required to ~~purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on executed or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred approved by any ~~Lender~~ Lender, other than the Lenders providing such Incremental Term Loans and/or Incremental Revolving Commitments, as applicable, and the Administrative Agent, in ~~accordance with Section 3.06~~order to be effective. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case effectiveness of any ~~such junior secured New Revolving~~ Incremental Facility ~~or New Term Facility, such New Revolving Facility or New Term Facility~~ Amendment shall be subject to ~~intercreditor arrangements that are reasonably satisfactory to~~ the satisfaction on the date thereof of each of the conditions set forth above and as such other conditions (if any) as requested by the Lenders under the Incremental ~~Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term~~ Facility ~~or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and~~ established in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oconnection therewith.

Appears in 1 contract

Sources: Credit Agreement (Fox Factory Holding Corp)

Incremental Facilities. (a) ~~The Borrowers may~~At any time during the period from and after the Closing Date through, ~~from time to time after~~ but excluding, the date that is the 4 year anniversary of the Closing Date, ~~upon notice by the Parent Borrower~~ Borrowers may request that (but subject to the ~~Person appointed by~~ Lender's approval and subject to 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 conditions set forth in clause (db) ~~below with respect to amortization)) (each, a “Term Commitment Increase”), (iii~~below) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (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, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Revolver Commitments and the ~~Term Commitment Increase, the “New Loan Commitments”) in~~ Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the ~~sum~~ Available Increase Amount (each such increase, an "Increase"). Lender shall increase its Revolver Commitments (it being understood that Lender has no obligation to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by Borrowers and acceptable to Lender. Any Increase shall be in an amount of ~~(x)~~ at least $10,000,000 and integral multiples of $5,000,000 in excess thereof. In no event may the ~~greater of (A) $100,000,000~~ Revolver Commitments and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum ~~Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made~~ Revolver Amount be increased pursuant to this Section ~~2.05(a) and (2) New Incremental Notes that are secured~~ 2.14 on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) to the extent accompanied by a corresponding, permanent reduction more than 2 occasions 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 (excluding~~aggregate for all such Increases. Additionally, for the avoidance of doubt, ~~proceeds~~ it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolver Commitments exceed $40,000,000. (b) Each of the following shall be conditions precedent to any ~~revolving credit facility~~ Increase of the Revolver Commitments and the Maximum Revolver Amount in connection therewith: (~~including~~ i) each of the conditions precedent set forth in Section 3.2 are satisfied, (ii) in connection with any Increase, the Loan Parties and their Subsidiaries will not own or acquire any Margin Stock, (iii) Borrowers have delivered to Lender updated pro forma Projections (after giving effect to the applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (on a month-by-month basis) immediately following the proposed date of the applicable Increase (calculated as if a Covenant Testing Period was in effect during the entire twelve month period), and (iv) Borrowers shall have reached agreement with Lender agreeing to the increased Revolver Commitments with respect to the interest margins applicable to Revolving ~~Credit Facility~~Loans to be made pursuant to the increased Revolver Commitments (which interest margins may be with respect to Revolving Loans made pursuant to the increased Revolver Commitments, higher than or equal to the interest margins applicable to Revolving Loans set forth in this Agreement immediately prior to the date of the increased Revolver Commitments (the date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount, the "Increase Date")) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by~~ communicated the amount of such ~~redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated~~ interest margins to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) ~~If (i) a~~ Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving ~~Tranche or a Term Loan Tranche is~~ Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the 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 Borrowers shall determine the effective date (the “Increase Effective Date”) Revolver Commitments 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, Maximum Revolver Amount pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o

Appears in 1 contract

Sources: Credit Agreement (Northwest Pipe Co)

Incremental Facilities. (a) The Borrowers may, from time to time after the Closing Date, upon notice by the Parent Borrower to 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (and after giving effect to any acquisition consummated concurrently therewith on a Pro Forma Basis and all other appropriate pro forma adjustment events 101 consistent with the definition of “Consolidated EBITDA” and Section 1.10) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under the ~~Ratio-~~ Ratio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash ~~proceeds~~proceeds incurred pursuant to this Section 2.14 and/or New Incremental Notes being incurred at such test date in calculating such Consolidated First Lien Net Leverage Ratio, Consolidated Senior Secured Net Leverage Ratio or Consolidated Total Net Leverage Ratio shall be excluded (it being understood that to the extent such proceeds are to be used to repay Indebtedness, the Borrowers shall be permitted to give Pro Forma Effect to such repayment). The Borrowers may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as Borrower may deem appropriate. (b) Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The Borrowers may also invite additional Eligible Assignees reasonably satisfactory to the Incremental Arranger and, solely in connection with a Revolving Credit Commitment Increase or New Revolving Facility, with the consent of the Administrative Agent, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable to the Revolving Credit Facility and (2) no amortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required, (C) in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans or Specified Refinancing Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the longest remaining Weighted Average Life to Maturity of, any other outstanding Term Loans, New Term Loans or Specified Refinancing Term Loans, as applicable; provided that Extendable Bridge Loans and Indebtedness Incurred pursuant to the Inside Maturity Date Exception may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being ~~prepaid and any costs incurred by any Lender in accordance with Section 3.06~~prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so ~~that~~that each Lender under such Term Loan Tranche will participate proportionately in each then outstanding Borrowing of Term Loans under the Term Loan Tranche. (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the ~~Incremental Arranger and, if such Incremental Arranger is not~~ Incremental (g) To the ~~Administrative Agent, the Administrative Agent), (ii) the~~ extent any New ~~Term~~ Revolving 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, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is denominated in an ~~aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000~~Alternative Currency, ~~(B) has a final maturity later than one year after the Latest Maturity Date of the then o~~this Agreeme

Appears in 1 contract

Sources: Credit Agreement (Maravai Lifesciences Holdings, Inc.)

Incremental Facilities. (a) The Borrowers ~~may~~may (on a joint and several basis), from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower Representative to the ~~Person appointed by the Borrower to arrange an incremental Facility (such Person~~ Administrative Agent (who ~~(i) may be~~ shall promptly notify the ~~Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”~~applicable Lenders) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 revolving credit facilities to the ~~Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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, in each case,~~ facilities in such currency or currencies as the ~~Parent Borrower identifies~~ 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”) in by an amount not to exceed the sum of (x) ~~the greater~~ a Dollar Amount of ~~(A)~~ $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) 600,000,000 (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum First Lien Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to ~~(i)(A)~~ all voluntary prepayments of ~~(1)~~ Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such ~~sum~~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 $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ 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 ~~the Prepayment-Based Incremental Facility~~clause (z), if any, prior to utilization of ~~the Cash-Capped Incremental Facility~~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 (to the extent compliant therewith~~Facility) prior to utilization of ~~the Cash-Capped Incremental Facility~~ amounts under clause (x), and ~~the Prepayment-Based Incremental Facility,~~ (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under ~~the Ratio-Based Incremental Facility~~ both clauses (~~to the extent compliant therewith), the Cash-Capped Incremental Facility~~ x) and ~~the Prepayment-Based Incremental Facility~~(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 ~~the Ratio- Based Incremental Facility~~ clause (~~without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility~~y) and then calculating the incurrence under ~~the Prepayment-Based Incremental Facility~~ clause (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at x)). At the time of sending such ~~redesignation~~notice to the applicable Lenders, the ~~Borrowers would be permitted~~ Borrower Representative (in consultation with the Administrative Agent) shall specify the time period within which each applicable Lender is requested to ~~incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility~~ respond (which, ~~for~~ unless the ~~avoidance of doubt~~Administrative Agent otherwise agrees, shall ~~have~~ in no event be less than ten Business Days from the ~~effect~~ date of ~~increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility, as applicable, by the amount~~ delivery of such ~~redesignated Indebtedness~~notice); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds. (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 ~~to participate in any New Loan Commitments~~ may elect or decline, in its sole discretion, to ~~participate in~~ 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 ~~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 (~~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~~ consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed) to become Lenders pursuant to a joinder agreement to this ~~Agreement. Neither the Administrative Agent nor the Collateral Agent (~~Agreement in ~~their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14~~ form 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 Borrowers must provide~~ substance reasonably satisfactory to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestAgent. (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 ~~Incremental Arranger~~ 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 ~~Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)~~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, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date~~, in the case of an increase to an existing Term Loan Tranche~~, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in 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)~~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 ~~(subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i))~~ would exist after giving effect to such increase; , (ii) ) (A) in the case of any increase of the Revolving Tranche, (1) the 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) ~~other than with respect to any Extendable Bridge Loans,~~ the final maturity shall be no earlier than the Maturity Date applicable to the Revolving Credit Facility and (2) no amortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required, (C) in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans or Specified Refinancing Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the longest remaining weighted average life 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 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 (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 Facilities (“Permitted Acquisition Provisions”). (e) On the Increase Effective Date with respect to ~~an increase to an existing~~ 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 the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C ~~Obligations~~ 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) participations hereunder in L/C ~~Obligations represented~~ Advances and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase ~~Lender~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), 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~~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~~payment, ~~not be Guaranteed by any Person that is not a Borrower or Guarantor under each of the other Facilities~~have no more guarantees as, and be ~~unsecured or~~ unsecured, secured either on a ~~pari passu~~ first lien “equal and ratable” basis with the other Facilities or on a “junior” ~~basis to the other Facilities~~basis, in each case over the same (or less) Collateral that secures the Facilities (and in each case, the ~~case~~ application of any ~~such junior secured New Revolving Facility or New Term Facility,~~ 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 ~~Incremental Arranger and, if such Incremental Arranger is not the~~ Administrative Agent, ; provided that the ~~Administrative Agent)~~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, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any ~~Dollar-denominated, floating rate~~ New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield ~~payable by the Borrowers~~ applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 50 basis points higher than the corresponding All-in Yield ~~payable by the Borrowers~~ for the ~~InitialTranche B~~ Initial Term Loans, unless the All-in Yield with respect to the ~~InitialTranche B~~ Initial Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the ~~InitialTranche B~~ Initial Term Loans is equal to 75 50 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o.

Appears in 1 contract

Sources: Credit Agreement (Ortho Clinical Diagnostics Holdings PLC)

Incremental Facilities. (a) The ~~Borrowers may, from time to time after the Closing Date, upon notice by the~~ Parent Borrower may by written notice to Administrative Agent elect to request 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 establishment of one or more ~~new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ (~~each,~~ x) additional tranches of term loans (including on a ~~“New Revolving Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”; and~~ delayed draw basis) (the commitments thereof, the “New Revolving Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereofthereto, the “New Term ~~Commitment~~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~~ and, together with the New Revolving Credit ~~Commitment Increase~~Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving ~~Commitments and the Term Commitment Increase~~Credit Commitments, the “New Loan Commitments”~~) in~~ ), by an aggregate amount not ~~to exceed~~ in excess of the ~~sum of~~ 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 ~~greater of~~ Administrative Agent or (Ay) ~~$100,000,000 and (B) Consolidated EBITDA for~~ shall constitute the ~~most recently ended four fiscal quarter period for which internal financial statements are available (and after giving effect to any acquisition consummated concurrently therewith on a Pro Forma Basis~~ difference between the Maximum Incremental Facilities Amount and all ~~other appropriate pro forma adjustment events consistent with~~ such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the ~~definition of “Consolidated EBITDA” and Section 1.10)~~ date on which the Parent Borrower proposes that the New Loan Commitments shall be effective (the effective date, the “~~Cash-Capped Incremental Facility~~Increased Amount Date”), the Borrowers (yincluding by appointing a Guarantor (other than Holdings) ~~an unlimited amount~~ 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 “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant currency in which such New Loan Commitments will be borrowed. Subject to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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(a1.11(c), in ~~each case~~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 ~~extent~~ Administrative Agent a certificate certifying that the New Loan Commitments do not ~~funded with~~ exceed the ~~proceeds of long term Indebtedness~~ 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 (~~excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)~~other than a natural Person) ~~and in the case of any such prepayment~~ to provide all or ~~repurchase at~~ a ~~price below par, based on the amount~~ portion of the ~~actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”)~~New Loan Commitments; provided that any ~~such request for an increase shall be in~~ Lender offered or approached to provide all or a ~~minimum amount~~ portion of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (b) Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to ~~participate~~ 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 ~~increase or new facility. The Borrowers may also invite additional Eligible Assignees reasonably satisfactory~~ Section 7.1 shall be deemed to refer to the ~~Incremental Arranger and~~applicable date determined in accordance with Section 1.11(c)); provided, ~~solely~~ 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 #101458425v1 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 ~~Increase or~~ and, each Loan made under a New Revolving ~~Facility~~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 ~~consent of~~ New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative ~~Agent~~Agent and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld, ~~each L/C Issuer (in each case,~~ 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 ~~consent~~ date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing ~~would be required~~ terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to ~~assign~~ 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 Amendment No. 56 Term Loans ((A) excluding the effects of any amortization of such New Term Loans in an amount no greater than 1.00% per annum at the time of incurrence or other obtaining thereof (subject to marginal increases resulting from the addition of one or more subsequent fungible tranches thereto) and (B) 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. 56 Term Loans in the case of mandatory prepayments applicable to the Initial Term Loans or the Amendment No. 56 Term Loans, as applicable, (iv) the pricing, interest rate #101458425v1 (1) New Term Loans incurred on or after the date that is 6 months after the Amendment No. 5 Effective Date, (2) New Term Loans scheduled to ~~such Eligible Assignee~~mature on or after the date that is one year after the Initial Term Loan Maturity Date, ~~which consents shall~~ (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 ~~be unreasonably withheld~~exceeding the greater of $210,800,000 and 100% of Consolidated EBITDA as of the last day of the most recently ended Test Period, ~~conditioned or delayed~~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 ~~become Lenders pursuant~~ the extent such terms and documentation are materially more favorable 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term ~~Facility or New Revolving Facility or to effectuate~~ Loan Lenders than the ~~increases~~ terms of the then existing Amendment No. 56 Term Loans (except 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, includingextent permitted (or, for the avoidance of doubt, at not prohibited) by clause (i), (ii), (iii) or (iv) above), they shall be either (A) reasonably satisfactory to the ~~option~~ Administrative Agent (provided that no consent shall be required by the Administrative Agent or any of the ~~Parent Borrower, with respect to~~ Lenders if any ~~increase in~~ covenants or other provisions are only applicable after the ~~Applicable Rate relating to any existing~~ Initial Term ~~Facility to bring~~ Loan Maturity Date or if such ~~Applicable Rate in line with~~ covenants or other provisions are added for the ~~New Term Facility to achieve fungibility with such existing Term Facility. As~~ benefit 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 Initial Term Loans or ~~Specified Refinancing~~ the Amendment No. 56 Term Loans, as applicable), (B) ~~shall be amended in writing~~ then-current market terms (~~which may be executed and delivered~~ as determined by the ~~Borrowers and~~ Borrower in good faith at the ~~Incremental Arranger~~ time of incurrence or issuance (~~and~~ or the ~~Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation~~obtaining of a commitment or establishment of initial terms with respect thereto)) for the applicable type of Indebtedness or (C) applicable only to ~~increase~~ periods after the ~~then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such~~ Initial 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~~ Maturity Date. (de) ~~With respect to any~~ Incremental Revolving Credit ~~Commitment Increase, Term Commitment Increase or addition of New Term Facility or New~~ Commitments and Incremental Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the final maturity Credit Loans shall be ~~the same as the Maturity Date applicable~~ identical to the Amendment No. 4 Revolving Credit ~~Facility, (2) no amortization or mandatory commitment reduction prior to~~ Commitments and the ~~Maturity Date applicable to the~~ related 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) other than with respect to any Extendable Bridge Loans, ~~the final maturity shall be no earlier~~ other than the Maturity Date ~~applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically~~ and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures as set forth in ~~Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and~~ this Section 2.14(e); provided that 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 thatthis Section 2.14 or otherwise: (i) ~~Any New~~ any such Incremental Revolving ~~Facility and New Term Facility~~ Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the ~~other Facilities~~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), ~~not be Guaranteed by any Person that is not a Borrower or Guarantor under each~~ (2) repayments required upon the maturity date of the ~~other Facilities~~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 ~~unsecured or secured either~~ made on a ~~pari passu~~ pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, #101458425v1 (iv) subject to Section 3.12 to the ~~other Facilities~~ 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 ~~“junior”~~ pro rata basis ~~to the other Facilities, in each case over~~ by all Lenders with Revolving Credit Commitments of the same ~~(or less) Collateral that secures~~ Series in accordance with their percentage of such Revolving Credit Commitments on the ~~Facilities~~ 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 ~~case~~ 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 ~~junior secured New~~ 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 ~~Facility or New Term Facility, such New~~ Credit Commitments and Incremental Revolving ~~Facility or New Term Facility~~ Credit Loans shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially governed by the same ~~as (~~assignment and ~~in any event no more favorably than) the Term Facility or~~ participation provisions applicable to Revolving Credit ~~Facility~~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, ~~unless~~ of Commitments from the ~~Borrowers otherwise elect~~ Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, (~~but in~~ viii) to the extent that any ~~event no more favorably than~~ New Term Loan does not form a part of the ~~existing~~ 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 (ix) the pricing, fees, maturity and other terms and provisions (other than with respect to matters contemplated by clauses (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) of this Section 2.14(e), which shall be as set forth above) of the Additional Revolving Credit Loans may be different and shall be either (A) determined by the Parent Borrower and the Lenders thereunder so long as the final maturity date and the Weighted Average Life to 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 to Maturity, as applicable, of the Amendment No. 4 Revolving Credit Commitments and related Revolving Credit Loans or (B) consistent with market terms and conditions, taken as a whole, at the time of incurrence or effectiveness of such Additional Revolving Credit Loans~~, as applicable),~~ . (f) [Reserved]. (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 (~~iii~~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 ~~Dollar-denominated, floating rate New Term Facility that is pari passu in right~~ principal amount of ~~payments and secured on a pari passu basis with InitialTranche B~~ such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and ~~is incurred on or prior~~ to provide for other terms consistent with this Section 2.14(g). In order to establish any Extended Term Loans, the Parent Borrower shall provide a notice to the ~~date that is 12 months after~~ Administrative Agent (who shall provide a copy of such notice to each of the ~~Closing Date and under~~ Lenders of the ~~Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers~~ applicable to Existing Term Loan Class which such ~~New Term Facility~~ request shall be ~~determined by~~ offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the ~~Borrowers and~~ proposed terms of the ~~Lenders providing such New~~ Extended Term ~~Facility and~~ Loans to be established, which shall not be materially more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then orestrictive to

Appears in 1 contract

Sources: Credit Agreement (Mirion Technologies, Inc.)

Incremental Facilities. ~~(a) The Borrowers may, from time to time after the Closing Date, upon notice by the Parent Borrower to the Person appointed by the Borrower to arrange an incremental Facility (such Person (who~~ (i) ~~may be~~ After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request the establishment of (x) one or more (A) additional tranches of term 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 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 ~~it so agrees~~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 ~~Person appointed~~ 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 ~~Parent Borrower~~Administrative Agent to not be unreasonably withheld or delayed). (b) In each case, such Incremental Commitments shall become effective as of the ~~“Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof~~applicable Increased Amount Date, ~~request~~ provided that (i) ~~an increase~~ 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 ~~Commitments under~~ 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 ~~Tranche~~ 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 ~~same terms as~~Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, ~~and become part of, the Revolving Tranche proposed~~ commitment or other similar fees payable 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 revolving credit facilities to the Facilities, in each case, in such currency~~ arrangers (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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”their affiliates) in ~~an amount~~ connection therewith) shall not to exceed the sum of (x) the ~~greater of (A) $100,000,000 and (B) Consolidated EBITDA~~ Applicable Margin for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Revolving Loans made pursuant to the ~~terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien~~ Revolving Commitments that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based effect on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amountIncreased Amount Date, and (y) the ~~entire amount~~ 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 ~~increase~~ 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 ~~may~~ 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 ~~requested under this Section 2.14~~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 ~~for purposes~~ the interest margin in respect of ~~any New Loan Commitments established pursuant to this Section 2.14 and New~~ such 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Synthetic L/C Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be ~~incurred under~~ increased by an additional 200 basis points in the ~~Ratio-Based Incremental Facility (to~~ form of an additional OID or upfront fees if reasonably necessary after increasing the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility (which, Applicable Margin for the ~~avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility,~~ Term Loans as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under set forth in this clause (Cvii), ~~and~~ and (Dviii) ~~solely for~~ the ~~purpose of calculating the Consolidated First Lien Net Leverage Ratio~~Increment Revolving Commitments, the ~~Consolidated Senior Secured Net Leverage Ratio~~ Incremental Term Loan Commitments 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 (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, each Synthetic 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) Commitments 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facilityeffected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender 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 ~~Section 2.14~~Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, 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 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 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 Loan Commitments 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 Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, 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 Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; 52 together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the “Incremental 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 ~~amended~~ necessary or appropriate, in ~~a writing~~ the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. Notwithstanding anything in this Agreement to the contrary, (~~which may be executed and delivered by~~ i) the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases references to the Term ~~Loan Tranche~~ Loans in this Section 2.23 shall be deemed to include the Replacement Term Loans and (ii) the references to the Revolving Commitments or the Revolving ~~Tranche and~~ Loans in this Section 2.23 shall be deemed to ~~reflect any technical changes necessary~~ include the Extended Revolving Commitments or ~~appropriate to give effect to such increase or new facility in accordance with its terms~~ the Extended Revolving Loans, as ~~set forth herein, including, for~~ applicable. For the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Tranche A Term Loans ~~made under the Term Loan~~ constitute Incremental 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~~ A Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Tranche B Term Loans ~~or Revolving Credit~~ constitute Incremental Term Loans~~, as applicable)~~, and (iii) ~~with respect to any Dollar-denominated, floating rate New~~ the Tranche A Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility Lenders shall be ~~determined by the Borrowers~~ Incremental Term Loan Lenders, in each case, for all purposes of this Agreement and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other ~~such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o~~Loan Documents.

Appears in 1 contract

Sources: Credit Agreement (Avis Budget Group, Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, ~~from time~~ by written notice to ~~time after the Closing Date, upon notice by the Parent Borrower to 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof,~~ elect to request (i) ~~an increase in~~ the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 establishment of one or more new term loan ~~facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ commitments (~~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) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, and/or (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) prior to the ~~extent accompanied by a corresponding~~latest Revolving Maturity Date at such time, ~~permanent reduction in~~ an increase to the existing Revolving ~~Credit Commitments pursuant to Section 2.06(a)~~Commitments, in each case, to the extent ~~not funded~~ agreed by the Persons providing the same, denominated in dollars or an Alternative Currency (any such increase, the “New Revolving Commitments” and, together with the ~~proceeds~~ New Term Commitments, the “New Commitments”), in a principal amount (A) not less than the Dollar Equivalent of ~~long term Indebtedness~~ $50,000,000 individually (~~excluding~~or such lesser amount which shall be reasonably approved by the Administrative Agent (it being understood and agreed that the Tranche C Incremental Amount is acceptable to the Administrative Agent) or that shall constitute the remaining available amount of New Commitments permitted to be established pursuant to and in accordance with this Section 2.24(a)), and integral multiples of the Dollar Equivalent of $5,000,000 in excess thereof, and (B) not to exceed, for all New Commitments established pursuant to this Section 2.24(a) after the ~~avoidance of doubt~~Sixth Amendment Effective Date, ~~proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the~~ an aggregate amount ~~of the actual cash expenditure~~ (the “~~Prepayment-Based~~ Maximum Incremental ~~Facility~~Amount”) equal to the sum of the Dollar Equivalent of (1) $750,000,000 plus (2) an amount equal to the Consolidated Cash Flow of the Borrower for the period of four consecutive fiscal quarters most recently ended on or prior to the date on which such ~~sum, at any such time,~~ New Commitments are established multiplied by 25% plus (3) an amount not to exceed $45,000,000 (the “Tranche C Incremental Amount”); provided that ~~any such request for an increase shall be in a minimum amount of~~ the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to this Section 2.14 and New Maximum Incremental ~~Notes issued pursuant to Section 2.15: (A) the Borrowers~~ Amount shall be deemed to ~~have used amounts under~~ be not less than the ~~Prepayment-Based Incremental Facility, if any, prior to utilization~~ sum of ~~the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility~~ (~~to the extent compliant therewith~~I) ~~prior to utilization~~ Dollar Equivalent of ~~the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility,~~ $1,295,000,000 (~~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~~ clause (~~to the extent compliant therewith~~I), the ~~Cash-Capped Incremental Facility~~ “Free and Clear Amount”), (II) the ~~Prepayment-Based Incremental Facility~~aggregate amount of any voluntary prepayment, ~~and proceeds from~~ redemption, repurchase or other retirement of Term Loans and/or any ~~such incurrence may be utilized in a single transaction by first calculating~~ permanent reductions of the ~~incurrence~~ commitments under ~~the Ratio- Based Incremental~~ any Revolving Facility (~~without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility)~~ including loan buybacks and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be open market purchases permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents ~~may be amended in a writing (which may be executed and delivered by~~ or termination from the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases “yank-a-bank” provisions, to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option extent of the ~~Parent Borrower, with respect to~~ actual purchase price paid in cash) and/or the amount of any ~~increase~~ permanent prepayment of Indebtedness in the ~~Applicable Rate relating~~ form of pari passu Incremental Equivalent Debt, in each case to the extent that the relevant prepayment is not funded or effected with any ~~existing Term Facility to bring such Applicable Rate in line with~~ long term Indebtedness (other than revolving Indebtedness) (this clause (II), the ~~New Term Facility to achieve fungibility with such existing Term Facility. As of~~ “Prepayment Amount”), and (III) an additional amount for Indebtedness secured by a Lien on the ~~Increase Effective Date~~Collateral, so long as, in the case of ~~an increase to an existing Term Loan Tranche~~this clause (III), the ~~amortization schedule for~~ Consolidated Secured Leverage Ratio would not exceed, on a pro forma basis, 3.50:1.00 (this clause (III), 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)~~ “Ratio Amount”), it being understood and agreed that, unless the Borrower otherwise elects, availability under the Ratio Amount shall be ~~amended in writing (which may~~ deemed used prior to availability under the Free and Clear Amount and the Prepayment Amount; provided, further, that the Maximum Incremental Amount shall be ~~executed and delivered~~ reduced by the ~~Borrowers~~ aggregate principal amount of any New Commitments established prior to such date and the aggregate principal amount of any Incremental ~~Arranger (and the Lenders hereby authorize any such Incremental Arranger~~ Equivalent Debt incurred prior 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, . Any 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~~ Commitments established pursuant to this Section ~~2.14~~2.24(a) shall be subject to any restrictions thereon set forth in Sections 6.01 and 6.02. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be effective, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent. Such New Commitments shall become effective as of such Increased Amount Date; provided that (i1) no Event of Default ~~(subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment~~ shall exist on such Increased Amount Date immediately before or ~~other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist~~ immediately after giving effect to such ~~increase;~~ New Commitments, as applicable (~~ii) (A) in~~ or, subject to Section 1.05, if the ~~case of any increase~~ proceeds of the ~~Revolving Tranche~~loans made pursuant to such New Commitments are used to finance a Limited Condition Transaction, no Event of Default pursuant to clauses (b), (1c), (g) ~~the final maturity~~ or (h) of Article VII shall ~~be the same~~ exist on such Increased Amount Date immediately before or immediately after giving effect to such New Commitments, as ~~the Maturity Date applicable to the Revolving Credit Facility,~~ applicable); (2) ~~no amortization or mandatory commitment reduction prior~~ subject to Section 1.05, both before and after giving effect to the ~~Maturity Date applicable to~~ making of any Series of New Term Loans or New Revolving Loans, the ~~Revolving Credit Facility~~ condition set forth in Section 4.01(d) shall be ~~required and~~ satisfied; (3) solely if the applicable New Commitments are being provided during a Test Period and subject to Section 1.05, the Borrower and its Subsidiaries shall be in pro forma compliance with the financial covenant set forth in Section 6.12 as of the last day of the most recently ended fiscal quarter for which financial statements are required to be delivered pursuant to Sections 5.04(a) and 5.04(b) immediately after giving effect to such New Commitments and any Investment to be consummated in connection therewith; (4) the New Commitments shall be effected pursuant to one or more Joinder Agreements executed by the Borrower, the Lenders providing such New Commitments and the Administrative Agent, and each of which shall be recorded in the Register; (5) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the New Commitments, as applicable; (6) the Borrower shall deliver or cause to be delivered any customary and appropriate legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction; and (7) the requirements set forth in Section 9.17 shall have been satisfied, to the extent applicable. Any New Term Loans made on an Increased Amount Date shall be designated as a separate series (a “Series”) of New Term Loans for all purposes of this Agreement and the other Loan Documents. (b) On any Increased Amount Date on which New Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and ~~documentation applicable to the Revolving Credit Facility shall apply~~conditions, (B) in the case of any New Revolving Facility, (1) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (xi) each of the Lenders with Revolving ~~Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned~~ Commitments shall assign to each Lender ~~providing~~ with a ~~portion of the increase to the~~ New Revolving ~~Credit Commitments~~ Commitment (each, a “New Revolving ~~Commitment Increase~~ Lender”) and each of the New Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof (together with accrued interest), ~~and each~~ such interests in the Revolving ~~Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender~~ Loans outstanding on such Increased Amount Date as shall be ~~required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder~~ necessary in ~~outstanding L/C Obligations such~~ order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders with Revolving Loans and New Revolving 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 loan made thereunder (a “New Revolving Loan”) shall be deemed, for all applicable purposes and as of the Increased Amount Date, a Revolving Loan and (iii) each New Revolving Lender shall become a Lender as of the Increased Amount Date with respect to its New Revolving Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Commitment (each, a “New Term Lender”) of any Series shall make a loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such ~~deemed assignment~~ Series, and ~~assumption~~ (ii) each New Term Lender of ~~participations~~any Series shall become a Lender hereunder with respect to its New Term Commitment of such Series and the New Term Loans of such Series made by such Lender pursuant thereto. (d) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the Series of New Term Commitments and New Term Lenders of such Series or the New Revolving Commitments and New Revolving Lenders, as applicable, and (ii) in the case of each notice to any Lender with Revolving Loans, the ~~percentage~~ respective interests in such Len▇▇▇’▇ Revolving Loans subject to the assignments contemplated by Section 2.24(b). (e) The terms and provisions of the ~~aggregate~~ New Term Loans and New Term Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, identical to the Term Loans, if any, outstanding ~~participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage~~ as of the ~~aggregate Revolving Credit Commitments~~ Increased Amount Date or, if more restrictive to the Borrower (taken as a whole), are either (x) then conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or the Administrative Agent, as applicable, pursuant to an amendment hereto (with any such amendment being effected in consultation with the Administrative Agent, but only requiring execution by the Borrower) or (y) not materially more favorable (taken as a whole) to the lenders or the agent of such New Term Loans and New Term Commitments; provided, however, that (i) the New Term Maturity Date for any Series shall be determined by the Borrower and the applicable New Term Lenders and shall be set forth in the applicable Joinder Agreement; provided that (x) the Weighted Average Life to Maturity of all ~~Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment~~ New Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the Class of Term Loans having the Latest Maturity Date of all Classes of Term Loans and (y) ~~if, on~~ the ~~date~~ applicable New Term Maturity Date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment each Series shall be ~~accompanied by accrued interest on~~ no shorter than 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 Latest Maturity Date of ~~the making~~ all Classes of ~~such new~~ Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the rate of interest applicable to the New Term ~~Facility or New Revolving Facility, as applicable, shall, for purposes~~ Loans of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility each Series shall be determined by the ~~Borrowers~~ Borrower and the ~~Lenders providing such~~ applicable New Term ~~Facility~~ Lenders and shall ~~not~~ be ~~more than 75 basis points higher than~~ set forth in the ~~corresponding All~~applicable Joinder Agreement; provided that, the all-in ~~Yield~~ yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on a four-year average life to maturity or the remaining life to maturity), but excluding customary arrangement, commitment, structuring, amendment, underwriting and/or similar fees paid or payable ~~by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect~~ to ~~the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield~~ any arranger or any arranger’s Affiliates with respect to such New Term ~~Facility and the corresponding All-in Yield on the InitialTranche B Term~~ Loans ~~is equal to 75 basis points; provided that this clause (iii~~of any Series) ~~shall not apply~~ applicable to any New Term ~~Facility~~ Loans of any Series shall not be more than 0.50% per annum higher than the corresponding all-in yield (determined on the same basis) applicable to the then outstanding Term Loans, unless the interest rate margin (and the interest rate floor, if applicable) with respect to the then outstanding Term Loans is increased by an amount equal to the difference between the all-in yield with respect to the New Term Loans of such Series and the all-in yield on the then outstanding Term Loans minus 0.50% per annum, and (iii) any New Term Loans incurred during a Collateral Release Period shall be unsecured and may be subject to substantially the same provisions with respect to a Collateral Reinstatement Event and subsequent Collateral Release Event as the Revolving Loans. As of the Increased Amount Date, the terms and provisions of the New Revolving Loans and New Revolving Commitments shall be such that they shall be identical to the extent applicable to those of the Revolving Loans and the Revolving Commitments as in effect on the Increased Amount Date with respect to such New Revolving Loans and New Revolving Commitments or, if more restrictive to the Borrower (Ataken as a whole), are either (x) ~~is in~~ then conformed (or added) to the Loan Documents for the benefit of the applicable Revolving Lenders or the Administrative Agent, as applicable, pursuant to an ~~aggregate principal amount~~ amendment hereto (~~together~~ with any ~~other~~ such amendment being effected in consultation with the Administrative Agent, but only requiring execution by the Borrower) or (y) not materially more favorable (taken as a whole) to the lenders or the agent of such New ~~Term Facility~~Revolving Loans and New Revolving Commitments. (f) ~~equal~~ Each Joinder 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 ~~less than $100,000,000~~appropriate, ~~(B) has a final maturity later than one year after~~ in the ~~Latest Maturity Date~~ opinion of the ~~then o~~Administrative Agent and the Borrower, to effect the provisions of this Section 2.24. (g) Notwithstanding anything in this Section 2.24 to the contrary, New Revolving Commitments provided to the Borrower in reliance on the Tranche C Incremental Amount shall be provided solely as Tranche C Revolving Commitments (and shall constitute Tranche C Revolving Commitments for all purposes of this Agreement and the other Loan Documents).

Appears in 1 contract

Sources: Credit Agreement (NRG Energy, Inc.)

Incremental Facilities. ~~(a) The Borrowers may, from time to time after the Closing Date, upon notice by the Parent Borrower to the Person appointed by the Borrower to arrange an incremental Facility (such Person (who~~ (i) ~~may be~~ After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request the establishment of (x) one or more (A) additional tranches of term 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 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 ~~it so agrees~~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 ~~Person appointed~~ 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 ~~Parent Borrower~~Administrative Agent to not be unreasonably withheld or delayed). (b) In each case, such Incremental Commitments shall become effective as of the ~~“Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof~~applicable Increased Amount Date, ~~request~~ provided that (i) ~~an increase~~ 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 ~~Commitments under~~ 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 ~~Tranche~~ 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 ~~same terms as~~Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, ~~and become part of, the Revolving Tranche proposed~~ commitment or other similar fees payable 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 revolving credit facilities to the Facilities, in each case, in such currency~~ arrangers (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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”their affiliates) in ~~an amount~~ connection therewith) shall not to exceed the sum of (x) the ~~greater of (A) $100,000,000 and (B) Consolidated EBITDA~~ Applicable Margin for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Revolving Loans made pursuant to the ~~terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien~~ Revolving Commitments that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based effect on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amountIncreased Amount Date, and (y) the ~~entire amount~~ 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 ~~increase~~ 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 ~~may~~ 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 ~~requested under this Section 2.14~~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 ~~for purposes~~ the interest margin in respect of ~~any New Loan Commitments established pursuant to this Section 2.14 and New~~ such 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Synthetic L/C Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be ~~incurred under~~ increased by an additional 200 basis points in the ~~Ratio-Based Incremental Facility (to~~ form of an additional OID or upfront fees if reasonably necessary after increasing the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility (which, Applicable Margin for the ~~avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility,~~ Term Loans as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under set forth in this clause (Cvii), ~~and~~ and (Dviii) ~~solely for~~ the ~~purpose of calculating the Consolidated First Lien Net Leverage Ratio~~Incremental Revolving Commitments, the ~~Consolidated Senior Secured Net Leverage Ratio~~ Incremental Term Loan Commitments 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 (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, each Synthetic 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) Commitments 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facilityeffected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the 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 this ~~Section 2.14~~Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, 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. 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 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, (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 Increased Amount Date on which any Incremental Term Loan Commitments 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 Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, 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 Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the “Incremental 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 amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or ~~appropriate~~ appropriate, in the opinion of the Administrative Agent, to ~~give~~ effect ~~to such increase or new facility in accordance with its terms as set forth herein, including, for~~ the provisions of this Section 2.23. For the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Tranche A Term Loans ~~made under the Term Loan~~ constitute Incremental 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~~ A Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Tranche B Term Loans ~~or Revolving Credit~~ constitute Incremental Term Loans~~, as applicable)~~, and (iii) ~~with respect to any Dollar-denominated, floating rate New~~ the Tranche A Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility Lenders shall be ~~determined by the Borrowers~~ Incremental Term Loan Lenders, in each case, for all purposes of this Agreement and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other ~~such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o~~Loan Documents.

Appears in 1 contract

Sources: Credit Agreement (Avis Budget Group, Inc.)

Incremental Facilities. (a) ~~The~~ At any time during the period from and after the Closing Date through but excluding the date that is the Maturity Date, at the option of Borrowers (but subject to the conditions set forth in Section 2.14(b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an “Increase”). Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by Borrowers, and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite by an amount in the aggregate for all such Increases not to exceed an amount equal to (i) the Available Increase Amount plus (ii) the maximum incremental Availability generated by an additional up to 5% advance rate in the case of clauses (a), (b), (c)(i), (d)(i) and (d)(ii) of the Borrowing Base in the form of a first-in last-out facility, borrowing base or sublimit (a “FILO”). Agent or Borrowers may, ~~from time~~ in their discretion, invite any Lender to ~~time after~~ participate in a proposed Increase and/or any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $25,000,000 and integral multiples of $5,000,000 in excess thereof. In no event may the ~~Closing Date~~Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 (A) other than by means of a FILO, ~~upon notice~~ on more than two occasions in the aggregate for all such Increases and (B) by means of a FILO, on more than one occasion. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolver Commitments exceed an amount equal to (x) $200,000,000 plus (y) the maximum incremental Availability generated by the ~~Parent Borrower~~ FILO. (b) Each of the following shall be conditions precedent to any Increase of the ~~Person appointed by~~ Revolver Commitments and the ~~Borrower to arrange an incremental Facility (such Person (who~~ Maximum Revolver Amount in connection therewith: (i) ~~may be~~ (x) Agent or Borrowers have obtained the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 commitment of one or more ~~new revolving credit facilities~~ Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the ~~Facilities~~applicable Increase and (A) any such Lenders (or prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), or (B) in the case of a FILO, any such Lenders (or prospective lenders), any other Lenders required to constitute Required Lenders, Borrowers, and Agent have signed a joinder and amendment agreement to this Agreement (an “Increase Amendment”), in each ~~case, in such currency or currencies as~~ case of the ~~Parent Borrower identifies in such notice~~ immediately preceding clauses (~~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”~~A) and (B), in form and substance reasonably satisfactory to Agent and (y) in the case of a FILO, Agent shall have received duly executed copies of such other documents, instruments and agreements reasonably requested by Agent in connection therewith in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party, (ii) each of the conditions precedent set forth in Section 3.2 are satisfied, (iii) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U‑1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Board of Governors, (iv) Borrowers have delivered to Agent updated pro forma Projections (after giving effect to the ~~addition~~ applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the 12 months (on a month-by-month basis) immediately following the proposed date of ~~one or more new term loan facilities, in each case, in~~ the applicable Increase, (v) Borrowers have delivered to Agent an officer’s certificate with corresponding calculations certifying and demonstrating that as of the date of such ~~currency or currencies as~~ Increase (i) after taking into account all Indebtedness of 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~~ Borrowers other than the ~~commitments thereof~~Obligations, the ~~“New Term Commitment”~~ Borrowers are able to incur Indebtedness under this Agreement equal to the Maximum Revolver Amount after giving effect to such Increase without violating Section 1011 of the KAC Indentures, and ~~together with~~ (ii) the ~~Revolving~~ Indenture Credit ~~Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) in an amount not to exceed~~ Facilities Cap exceeds the sum of (x) the ~~greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (and~~ Maximum Revolver Amount after giving effect to ~~any acquisition consummated concurrently therewith on a Pro Forma Basis~~ such Increase and ~~all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.10) (the “Cash-Capped Incremental Facility”),~~ (y) ~~an unlimited amount (~~all Indenture Credit Facilities Indebtedness other than the ~~“Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z)~~ Obligations, by an amount equal to or greater than 10% of the Maximum Revolver Amount after giving effect to such Increase; and (~~i)(A~~vi) ~~all voluntary prepayments~~ (x) other than in the case of ~~(1) Term~~ an Increase by means of a FILO, the interest rate margins with respect to the Revolving Loans to be made pursuant to ~~Section 2.05(a)~~ the increased Revolver Commitments shall be the same as the interest rate margin applicable to Revolving Loans hereunder immediately prior to the applicable Increase Date (as defined below). and (2y) ~~New Incremental Notes that are secured on~~ in the case of an Increase by means of a ~~pari passu basis~~ FILO, the interest rate margins with respect to the ~~Term~~ Revolving Loans to be made pursuant to the increased Revolver Commitments may be higher than the interest rate margin applicable to Revolving Loans hereunder immediately prior to the applicable Increase Date. (c) Unless otherwise specifically provided herein, all references in this Agreement and ~~(B) all repurchases of (1) Term~~ any other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the ~~terms hereof~~ increased Revolver Commitments and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of Revolving Credit Loans made Maximum Revolver Amount pursuant to this Section ~~2.05(a~~2.14. (d) Each of the Lenders having a Revolver Commitment prior to the ~~extent accompanied by~~ effective date (any such date, the “Increase Date”) of any Increase (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a ~~corresponding~~new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), ~~permanent reduction~~ and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in Letters of Credit Commitments pursuant to Section 2.06(a), in each case, to the extent not funded with the proceeds of long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any on such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase Increase Date as shall be necessary in ~~a minimum amount~~ order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of ~~the lesser of~~ Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments. (xe) ~~$5,000,000 or~~The Revolving Loans, ~~in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount~~Revolver Commitments, 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~~ Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and ~~New Incremental Notes issued pursuant to Section 2.15: (A) the Borrowers~~ Maximum Revolver Amount under, and shall be ~~deemed~~ entitled to ~~have used amounts under~~ all the Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14benefits afforded by, this Agreement and the other Loan ~~Documents may be amended in a writing (which may be executed~~ Documents, and ~~delivered~~ shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the ~~Incremental Arranger (~~Liens and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered security interests granted 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~~ Documents continue to be ~~applied to increase such installments ratably in accordance with~~ perfected under the ~~amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase~~ Code or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist otherwise 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case establishment of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (new Revolver Commitments and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oMaximum Revolver Amount.

Appears in 1 contract

Sources: Credit Agreement (Kaiser Aluminum Corp)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (such Person (who may be (i) ~~may be~~ the Administrative Agent, if it so ~~agrees,~~ agrees or (ii) any other Person appointed by the ~~Parent Borrower~~Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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) the greater of (A) $~~100,000,000~~ 130,000,000 and (B) 75% of Four Quarter Consolidated ~~EBITDA for~~ EBITDA, minus the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ amount incurred prior to the date of incurrence thereof under the Second Lien Cash-Capped Incremental Amount (and ~~after giving effect to any acquisition consummated concurrently therewith on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent~~ not reclassified in accordance with the ~~definition~~ provisions of ~~“Consolidated EBITDA” and Section 1.10~~the Second Lien Credit Agreement) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of ~~(1)~~ pari passu Term Loans (including, for the avoidance of doubt, any New Term Loans that are pari passu in right of payment and security with the Initial Term Loans) made pursuant to Section 2.05(a) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (~~B) all repurchases and/or cancellations of ~~(1)~~ pari passu Term Loans (including, for the avoidance of doubt, any New Term Loans) made pursuant to the terms hereof (in an amount equal to the face amount of the principal amount repurchased and/or cancelled) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (~~ii~~) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii~~) voluntary prepayments of Revolving Credit Loans (including, for the avoidance of doubt, any New Revolving 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such sum, at any such ~~time~~time and subject to Section 1.02(i), the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in ~~an Alternative Currency~~a foreign currency, the ~~Alternative Currency Equivalent of~~ equivalent principal amount thereof then outstanding in such ~~amount~~foreign currency, converted to Dollars in accordance with Section 1.08, 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~~ Equivalent Debt incurred pursuant to Section 2.15: : (A) At the ~~Borrowers~~ Borrower’s option, 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 Borrowers shall be deemed to have used~~ the Ratio-Based Incremental Facility (to the extent compliant therewith) ), prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility, and the Borrower shall be deemed to have used the Prepayment-Based Incremental Facility prior to utilization of the Cash-Capped Incremental ~~Facility and the Prepayment-Based Incremental~~ Facility, , (B) New Loan Commitments pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by or series of related transactions by, at the Borrower’s option, first calculating the incurrence under the ~~Ratio-~~ Ratio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility or any amounts substantially concurrently incurred under Section 7.01 (other than any Ratio Debt or Ratio Acquisitions Debt incurred pursuant to Section 7.01) and then calculating the incurrence under the Prepayment Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash Capped Incremental Facility) and then calculating the incurrence under the ~~Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the~~ Cash-Capped Incremental Facility~~) and/or the incurrence under the Cash-Capped Incremental Facility,~~ , (C) ~~the Borrowers may redesignate~~ all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility ~~as having been~~ shall automatically cease to be deemed incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility and shall instead be deemed incurred under the Ratio-Based Incremental Facility ~~so long as, at~~ from and after the ~~time of such redesignation,~~ first date on which the ~~Borrowers~~ Borrower would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such 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 or and/or the Prepayment-Based Incremental Facility, as applicable, by all or such portion, as applicable, of the aggregate principal amount of such ~~redesignated~~ Indebtedness)~~; provided~~, ~~that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and~~ and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash ~~proceeds~~proceeds incurred pursuant to this Section 2.14 and/or Incremental Equivalent Debt being incurred at such test date in calculating such Consolidated First Lien Net Leverage Ratio, Consolidated Senior Secured Net Leverage Ratio or Consolidated Total Net Leverage Ratio shall be excluded for purposes of calculating Adjusted Cash or Cash Equivalents. The Borrower may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as the Borrower may deem appropriate. (b) For the avoidance of doubt, the Borrower will not be obligated to approach any Lender to participate in any New Loan Commitments. Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The ~~Borrowers~~ 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,~~ Agent and 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~~ consent shall not be unreasonably withheld, ~~conditioned~~ delayed or ~~delayed~~conditioned) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as 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 ~~Borrowers~~ Borrower must provide to the Administrative Agent ~~(x)~~ the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestCommitments. (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~~ 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 ~~Borrowers~~ Borrower and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for~~ herein pursuant to the ~~avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate~~ documentation 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~~ or New Revolving Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the ~~Borrowers~~ 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, (i) no Event of Default (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist immediately 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) ~~other than with respect to any Extendable Bridge Loans,~~ the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase applicable to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment Facility and (y2) ~~if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on~~ no amortization or mandatory commitment reduction prior to the ~~Increase Effective~~ Maturity Date ~~be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ applicable to 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 Facility 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~~required, ~~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~~C) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans, Specified Refinancing Term Loans or Extended Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such ~~junior secured~~ 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 ~~Revolving Facility~~ Term Loans, Specified Refinancing Term Loans or Extended Term Loans, as applicable; provided, that Extendable Bridge Loans/Interim Debt may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and, with respect to Extendable Bridge Loans/Interim Debt, the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, and (D) in the case of any New Term Facility, other than in the case of Extendable Bridge Loans/Interim Debt, such New ~~Revolving~~ Term Facility or 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 ~~subject~~ no shorter than that of any existing Term Loan Tranche; (iii) except with respect to ~~intercreditor arrangements that are~~ the All-in Yield and as set forth in subclause (D) above with respect to final maturity and Weighted Average Life to Maturity, any such New Term Facility or New Revolving Facility shall have terms reasonably satisfactory to the Incremental ~~Arranger and, if such~~ Arranger; and (iv) to the extent reasonably requested by the Incremental Arranger ~~is not~~ and expressly set forth in the ~~Administrative Agent, the Administrative Agent), (ii) the~~ documentation relating to such New Term Facility or New Revolving Facility, the Incremental Arranger shall have received legal opinions, resolutions, officers’ certificates, reaffirmation agreements and/or subsequent ranking agreements or amendment agreements to, confirmations of and/or lower ranking Collateral Documents, as applicable, 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, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) consistent with ~~respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured~~ those delivered on ~~a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after~~ the Closing Date ~~and~~ under ~~the Ratio-Based Incremental Facility~~Section 4.01 or delivered from time to time pursuant to Section 6.12, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oSection 6.14 and/or Section

Appears in 1 contract

Sources: First Lien Credit Agreement (ZoomInfo Technologies Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to 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 Parent Borrower), the “Incremental Arranger”)~~ Agent specifying the proposed amount and terms thereof ~~and the proposed currency denomination thereof~~(each, an “Incremental Notice”), request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (a “Revolving Credit Commitment Increase”), (ii) an increase in any Term Loan Tranche then outstanding (which shall be on ~~the same~~ identical terms asas (except as otherwise provided in clause (d) below with respect to amortization), 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”), ) or (~~iii~~ii) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (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 Dollar-denominated new term loan ~~facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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~~ Loan Commitment~~” and together with the Revolving Credit Commitment Increase~~”), ~~the New Revolving Commitments and the Term Commitment Increase, the “~~in an aggregate amount for all such New Loan ~~Commitments”) in an amount~~ Commitments not to exceed ~~the sum of~~ (x1) the greater of (Ax) $~~100,000,000~~ 25,000,000 and (By) 50% of Consolidated EBITDA of the Borrower Parties for the most recently ended ~~four fiscal quarter period for which internal financial statements are available~~ Test Period, plus (~~and~~ 2) the aggregate amount of all prior voluntary prepayments of Term Loans, plus (3) additional Indebtedness in an aggregate amount that would not cause the Total Net Leverage Ratio to exceed the Closing Date Total Net Leverage Ratio after giving ~~effect to any acquisition consummated concurrently therewith on a~~ Pro Forma ~~Basis~~ Effect to the incurrence of such additional Indebtedness (and all other ~~appropriate pro forma adjustment events consistent with~~ Indebtedness incurred in connection therewith on the definition of “Consolidated EBITDA” and Section 1.10) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(adate thereof) and the application of proceeds thereof (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans~~ and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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~~ case assuming the extent not funded with the proceeds of long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the full amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments ~~denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount~~are fully drawn, and ~~(y)~~ without netting the ~~entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes~~ proceeds 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose purposes of calculating the ~~Consolidated First Lien~~ Total 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). (b) ~~Any~~ Each Lender ~~approached~~ shall be offered the right to ~~participate in any New Loan Commitments may~~ elect or decline, in its sole discretion, to participate in its applicable Pro Rata Share of any New Loan Commitments; provided, that if any Lender has not affirmatively agreed within ten (10) Business Days of receipt of such ~~increase~~ offer to provide any such New Loan Commitments or ~~new facility. The Borrowers~~ portion thereof pursuant to an Incremental Notice, such Lender shall be deemed to have rejected such offer, and if the existing Lenders are not willing to provide 100% of the requested New Loan Commitments, then the Borrower may also invite additional Eligible Assignees ~~reasonably satisfactory~~ (subject 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 (in each case,~~ Agent to the extent the consent of any of the foregoing would be required pursuant to ~~assign Revolving Credit Loans or Term Loans, as applicable,~~ Section 10.07 (such consent not to ~~such Eligible Assignee, which consents shall not~~ be unreasonably withheld, ~~conditioned~~ delayed or ~~delayed~~conditioned)) to provide the remaining portion of such New Loan Commitments and become Lenders pursuant to a joinder agreement to this Agreement; provided, further, that no existing Lender shall be required to participate in any Term Commitment Increase, New Term Facility without such Lender’s consent. ~~Neither the~~ The Administrative ~~Agent nor the Collateral~~ Agent (in ~~their respective capacities~~ its capacity as such) shall ~~be required to~~ execute, accept or acknowledge any joinder agreement or amendment pursuant to this Section 2.14 ~~and such execution shall not be required for any such joinder agreement~~ requested by the Borrower to be ~~effective; provided that~~executed, ~~with respect to any New Loan Commitments, the Borrowers must provide to~~ accepted or acknowledged by it unless the Administrative Agent ~~(x)~~ shall have determined in good faith that the ~~documentation providing for such~~ relevant New Loan ~~Commitments~~ Commitment does not comply with the applicable terms and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestconditions set forth herein. (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 ~~Borrowers~~ Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the Administrative Agent and the Borrower shall determine the final allocation of such ~~increase,~~ increase or New Term ~~Facility or New Revolving~~ Facility among the applicable Lenders. The ~~Incremental Arranger~~ Administrative Agent shall promptly notify the applicable Lenders with New Loan Commitments of the final allocation of such ~~increase,~~ increase or 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~~ Borrower and the ~~Incremental Arranger~~ Administrative Agent (and the Lenders hereby authorize any the ~~any such Incremental Arranger~~ 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, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of ~~an increase to an existing~~ a Term ~~Loan Tranche~~Commitment Increase, 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~~ Borrower and the ~~Incremental Arranger~~ Administrative Agent (and the Lenders hereby authorize ~~any such Incremental Arranger~~ the Administrative Agent 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) (I) With respect to ~~any Revolving Credit Commitment Increase, Term Commitment Increase or~~ the addition of any New ~~Term Facility or New Revolving Facility~~ Loan Commitment pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i)) ~~in connection with any acquisition Investment~~exists immediately prior to, ~~Restricted Payment~~ or ~~other transaction permitted pursuant~~ would exist immediately after giving effect to, such New Loan Commitment; (ii) subject to ~~this Agreement as described in~~ Section 1.02(i), the representations and warranties made by the Loan Parties hereunder and under any other Loan Document shall be true and correct in all material respects on and as of the date of effectiveness of such New Loan Commitment; provided that, (x) ~~would exist after giving effect~~ to the extent such ~~increase~~representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date and (y) any representation and warranty that is qualified by “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such date; (~~ii)~~ iii) (A) in the case of any ~~increase of the Revolving Tranche~~Term Commitment Increase, ~~(1)~~ the final maturity of the Term Loans or New Term Loans increased pursuant to this Section shall be the same as, and such additional Loans shall have a Weighted Average Life to Maturity that is the same as, the Term Loans or New Term Loans increased pursuant to this Section, in each case other than as agreed to between the ~~Maturity Date applicable~~ Borrower and the Administrative Agent to ~~the Revolving Credit Facility~~preserve fungibility, ~~(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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New ~~Revolving Facility or New~~ Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event have a final maturity no ~~more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably~~ earlier than the then Latest Maturity Date of any existing Term ~~Loans or Revolving Credit Loans, as applicable),~~ Loan Tranche and ~~(iii) with respect~~ the Weighted Average Life to ~~any Dollar-denominated, floating rate New Term Facility that is pari passu in right~~ Maturity of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be ~~determined by~~ no shorter than that of any existing Term Loan Tranche, in each case other than as agreed to between the ~~Borrowers~~ Borrower and the Administrative Agent to preserve fungibility; and (iv) except with respect to All-in Yield and as set forth in subclause (B) above with respect to final maturity and Weighted Average Life to Maturity, or otherwise as shall be reasonably satisfactory to the Administrative Agent or terms effecting exclusively periods commencing after the then Latest Maturity Date, any such New Term Facility shall have substantially the same terms as the Term Facility; provided, that (x) to the extent such terms are more favorable to the Lenders providing such New Term Facility ~~and~~ than comparable terms existing in the Loan Documents, such terms shall ~~not~~ be ~~more than 75 basis points higher than the corresponding All-in Yield payable~~ incorporated into this Agreement (or any other applicable Loan Document) as agreed to by the ~~Borrowers~~ Administrative Agent for the ~~InitialTranche B Term Loans, unless the All-in Yield with respect~~ benefit of all existing Lenders (to the ~~InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect~~ extent applicable to such Lender) without the consent of the existing Lenders or the Borrower, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable rate and/or change in amortization relating to any existing Term Facility to bring such Applicable Rate and/or amortization 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. 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 corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oBorrower.

Appears in 1 contract

Sources: Credit Agreement (Absolute Software Corp)

Incremental Facilities. (a) The ~~Borrowers may, from time to time after the Closing Date, upon~~ Borrower may by written notice ~~by the Parent Borrower~~ to the ~~Person appointed by~~ Agent elect to request the ~~Borrower to arrange an incremental Facility (such Person (who~~ following: (i) ~~may be~~ (A) prior to the ~~Administrative Agent, if it so agrees, or (ii)~~ Revolving Credit Maturity Date applicable to any ~~other Person appointed by~~ Class of Revolving Credit Commitments in effect at the ~~Parent Borrower)~~time of such request, the ~~“Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof,~~ Borrower may request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 revolving credit facilities~~ increases to ~~the Facilities~~such Class (any such increase, ~~in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a~~ “~~New~~ Incremental Revolving ~~Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”; and the commitments thereof, the “New Revolving Commitment~~Credit Commitments”) ~~and~~ and/or (ivB) the ~~addition~~ establishment of one or more new term loan ~~facilities~~commitments (the “Incremental Term Loan Commitments”), in amounts that, together, are (i) not in excess of an aggregate maximum amount of $250,000,000 for all such Incremental Revolving Loan Commitments and Incremental Term Loan Commitments during the term of this Agreement and (ii) with respect to each ~~case~~such request, not less than $20,000,000 (or any lesser amount that is approved by the Agent) and integral multiples of $5,000,000 in ~~such currency or currencies as~~ excess of that amount; (ii) if and to the ~~Parent Borrower identifies in such notice (each, a “New Term Facility”; and~~ extent that any ~~advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with~~ of the Revolving Credit ~~Commitment Increase~~Commitments in effect on the Second Amendment Effective Date expire or have been reduced or terminated on or before the time of such request and there is no Replacement ABL Facility in effect at such time, the ~~New~~ Borrower may request the reinstatement of all or any portion of such expired, reduced or terminated Revolving Credit Commitments ~~and the Term Commitment Increase,~~ (the “~~New Loan~~ Reinstated Revolving Credit Commitments”) in an aggregate maximum amount not to exceed ~~the sum of (x) the greater of (A)~~ $100,000,000 and ~~(B) Consolidated EBITDA for~~ having a final maturity of June 30, 2017 or such earlier or later date as may be agreed in writing by the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such timeBorrower, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders ~~hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply~~ agreeing 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 provide such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Reinstated Revolving Credit ~~Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and~~ Commitments; and (iii) ~~with respect~~ the Borrower may request the establishment of one or more new term loan commitments (the “Tranche B-3 Term Loan Commitments”) to ~~any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B~~ refinance Tranche B-1 Term Loans in whole or in part, in amounts that are not in excess of the principal amount of the Tranche B-1 Term Loans being refinanced therewith (plus unpaid accrued interest and is any premium thereon plus other fees and expenses incurred on (or ~~prior~~ reasonably estimated to be payable) in connection therewith and any original issue discount) and the ~~date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility~~ proceeds of which shall be ~~determined by~~ applied to repay the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oTranche B-1

Appears in 1 contract

Sources: Credit Agreement (Harland Clarke Holdings Corp)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ 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 ~~Parent~~ 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 thereof~~ amount, and ~~the proposed~~ currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 revolving credit facilities to the ~~Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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”) in by an amount not to exceed at the time of such incurrence the sum of (x) the greater of (A1) the amount of $~~100,000,000~~ 1,100,000,000 and (B2) 75% of Consolidated EBITDA of the Borrower Parties for the ~~most recently ended~~ four fiscal quarter period most recently then ended for which ~~internal~~ financial statements ~~are available~~ have been delivered pursuant to Section 6.01(a) or (~~and after giving effect to any acquisition consummated concurrently therewith~~ b), as applicable, calculated on a Pro Forma Basis for such period , less amounts Incurred under Section 2.15(A) (and ~~all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.10~~any Permitted Refinancings thereof (or successive Permitted Refinancings)) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum First Lien Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to ~~(i)(A)~~ all voluntary prepayments of ~~(1)~~ pari passu Term Loans made pursuant to Section 2.05(a) and ~~(2) New Incremental Notes that are secured on a~~ repurchases of pari passu ~~basis with the Term Loans and (B) all repurchases of (1)~~ Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (~~excluding, for~~ other than to the ~~avoidance of doubt,~~ 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 ~~revolving credit facility~~ Permitted Refinancings thereof (~~including the Revolving Credit Facility~~or successive Permitted Refinancings)) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such~~ 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 ~~New~~ Incremental ~~Notes~~ Equivalent Debt issued pursuant to Section 2.15: , (A) the ~~Borrowers~~ 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 ~~Borrowers~~ Borrower shall be deemed to have used the Ratio-Based Incremental Facility (to the extent ~~compliant therewith~~permitted by the pro forma calculation of the Consolidated First Lien Net Leverage Ratio) prior to utilization of the Cash-Capped ~~Incremental Facility and the Prepayment-Based~~ Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent ~~compliant therewith~~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 Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ 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/or~~ and then calculating the incurrence under the Cash-Capped Incremental ~~Facility,~~ Facility and (C) the ~~Borrowers~~ Borrower may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped ~~Incremental Facility or the Prepayment-Based~~ Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the ~~Borrowers~~ 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 ~~or the Prepayment-Based Incremental Facility, as applicable,~~ by the amount of such redesignated Indebtedness)~~; provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end~~ . The Borrower may designate any Incremental Arranger of any ~~fiscal quarter,~~ New Loan Commitments with such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability titles under the ~~Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds~~New Loan Commitments as Borrower may deem appropriate. (b) Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The ~~Borrowers~~ 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,~~ Agent and 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~~ consent shall not be unreasonably ~~withheld, conditioned~~ 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 ~~Borrowers~~ Borrower must provide to the Administrative Agent ~~(x)~~ reasonable prior written notice thereof and the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestCommitments. (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 ~~Borrowers~~ 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 ~~Borrowers~~ Borrower and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect~~ herein pursuant to ~~any increase in the Applicable Rate relating to any existing Term~~ an Incremental Facility ~~to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term 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~~ 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, (i) no Event of Default (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist after giving effect to such increase; (ii) ) (A) in the case of any increase of the Revolving Tranche, (1) the 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) ~~other than with respect to any Extendable Bridge Loans,~~ the final maturity shall be no earlier than the Maturity Date applicable to the Revolving Credit Facility and (2) no amortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required, (C) in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans or Specified Refinancing Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the longest remaining Weighted Average Life to Maturity of, any other outstanding Term Loans, New Term Loans or Specified Refinancing Term Loans, as applicable; provided, that Extendable Bridge Loans/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, the conditions precedent to each such increase or New Loan Commitment shall be agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrower. (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations ~~represented by such Revolving Commitment Increase Lender~~ will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), 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~~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~~ guaranteed by any Person that is not a the Borrower or Guarantor under each of the other Facilities, and be ~~unsecured or~~ unsecured, secured either on a ~~pari passu~~ first lien “equal and ratable” basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o

Appears in 1 contract

Sources: Credit Agreement (Allison Transmission Holdings Inc)

Incremental Facilities. (a) The Borrowers may, from time to time after the Closing Date, ~~upon notice by the Parent Borrower to the Person appointed by the Borrower to~~ arrange an incremental Facility (with such Person arranging such Facility (who may be (i) ~~may be~~ the Administrative ~~Agent, if it so agrees,~~ Agent or (ii) any other Person appointed by the ~~Parent Borrower~~Borrower Representative), the “Incremental Arranger”) ~~specifying the proposed amount thereof and the proposed currency denomination thereof, request~~ with such Facility being (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 revolving credit facilities to the Facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower ~~identifies in such notice~~ 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 loan facilities, which may take the form of a delayed draw term loan facility, in each case, in such currency or currencies as the ~~Parent~~ Borrower ~~identifies in such notice~~ Representative elects (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o:

Appears in 1 contract

Sources: Credit Agreement (StandardAero, Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ 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 ~~Parent~~ 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 thereof~~ amount, and ~~the proposed~~ currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 revolving credit facilities to the ~~Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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”) in by an amount not to exceed at the time of such incurrence the sum of (x) the greater of (A1) the amount of $~~100,000,000~~ 1,100,000,000 and (B2) 75% of Consolidated EBITDA of the Borrower Parties for the ~~most recently ended~~ four fiscal quarter period most recently then ended for which ~~internal~~ financial statements ~~are available~~ have been delivered pursuant to Section 6.01(a) or (~~and after giving effect to any acquisition consummated concurrently therewith~~ b), as applicable, calculated on a Pro Forma Basis for such period , less amounts Incurred under Section 2.15(A) (and ~~all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.10~~any Permitted Refinancings thereof (or successive Permitted Refinancings)) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum First Lien Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to ~~(i)(A)~~ all voluntary prepayments of ~~(1)~~ pari passu Term Loans made pursuant to Section 2.05(a) and ~~(2) New Incremental Notes that are secured on a~~ repurchases of pari passu ~~basis with the Term Loans and (B) all repurchases of (1)~~ Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (~~excluding, for~~ other than to the ~~avoidance of doubt,~~ 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 ~~revolving credit facility~~ Permitted Refinancings thereof (~~including the Revolving Credit Facility~~or successive Permitted Refinancings)) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such~~ 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 ~~New~~ Incremental ~~Notes~~ Equivalent Debt issued pursuant to Section 2.15: , (A) the ~~Borrowers~~ 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 ~~Borrowers~~ Borrower shall be deemed to have used the Ratio-Based Incremental Facility (to the extent ~~compliant therewith~~permitted by the pro forma calculation of the Consolidated First Lien Net Leverage Ratio) prior to utilization of the Cash-Capped ~~Incremental Facility and the Prepayment-Based~~ Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent ~~compliant therewith~~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 Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ 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/or~~ and then calculating the incurrence under the Cash-Capped Incremental ~~Facility,~~ Facility and (C) the ~~Borrowers~~ Borrower may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped ~~Incremental Facility or the Prepayment-Based~~ Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the ~~Borrowers~~ 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 ~~or the Prepayment-Based Incremental Facility, as applicable,~~ by the amount of such redesignated Indebtedness)~~; provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end~~ . The Borrower may designate any Incremental Arranger of any ~~fiscal quarter,~~ New Loan Commitments with such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability titles under the ~~Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds~~New Loan Commitments as Borrower may deem appropriate. (b) Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The ~~Borrowers~~ 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,~~ Agent and 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~~ consent shall not be unreasonably ~~withheld, conditioned~~ 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 ~~Borrowers~~ Borrower must provide to the Administrative Agent ~~(x)~~ reasonable prior written notice thereof and the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestCommitments. (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 ~~Borrowers~~ 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 ~~Borrowers~~ Borrower and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect~~ herein pursuant to ~~any increase in the Applicable Rate relating to any existing Term~~ an Incremental Facility ~~to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term 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~~ 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, (i) no Event of Default (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist after giving effect to such increase; (ii) ) (A) in the case of any increase of the Revolving Tranche, (1) the 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) ~~other than with respect to any Extendable Bridge Loans,~~ the final maturity shall be no earlier than the Maturity Date applicable to the Revolving Credit Facility and (2) no amortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required, (C) in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans or Specified Refinancing Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the longest remaining Weighted Average Life to Maturity of, any other outstanding Term Loans, New Term Loans or Specified Refinancing Term Loans, as applicable; provided, that Extendable Bridge Loans/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, the conditions precedent to each such increase or New Loan Commitment shall be agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrower. (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations ~~represented by such Revolving Commitment Increase Lender~~ will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase Lender~~Credit ▇▇▇▇▇▇’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so ~~that~~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~~ guaranteed by any Person that is not a the Borrower or Guarantor under each of the other Facilities, and be ~~unsecured or~~ unsecured, secured either on a ~~pari passu~~ first lien “equal and ratable” basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o

Appears in 1 contract

Sources: Credit Agreement (Allison Transmission Holdings Inc)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ 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 (other than an Affiliate of the Borrower) appointed by the ~~Parent~~ 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 thereof and the ~~proposed~~ currency ~~denomination thereof~~denomination, request (i) an increase in the Commitments under any Revolving ~~Tranche~~ Tranche, which Commitments may be in Dollars, in any Alternative Currency or any combination thereof (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~~ outstanding, which increase may be provided in Dollars or in any Alternative Currency (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 revolving credit facilities to the ~~Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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”) in by an amount not to exceed the sum of (x) the greater of (A) $~~100,000,000~~ 350,000,000 and (B) Consolidated EBITDA ~~for~~ as of the most recently ended four fiscal quarter period for which ~~internal~~ financial statements ~~are available~~ have been delivered or were required to have been delivered pursuant to Section 6.01(a) or Section 6.01(b), as applicable (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum First Lien Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to ~~(i)(A)~~ all repurchases and voluntary prepayments of ~~(1)~~ Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $~~5,000,000~~ 20,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to this Section 2.14 and New Incremental Notes issued pursuant to Section 2.15: , (A) the ~~Borrowers~~ 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 ~~Borrowers~~ Borrower shall be deemed to have used the Ratio-Based Incremental Facility (to the extent ~~compliant therewith~~permitted by the pro forma calculation of the First Lien Net Leverage Ratio) prior to utilization of the Cash-Capped ~~Incremental Facility and the Prepayment-Based~~ Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under ~~the Ratio-Based Incremental Facility~~ clauses (~~to the extent compliant therewith~~x), 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 Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o

Appears in 1 contract

Sources: Credit Agreement

Incremental Facilities. (a) The Borrowers ~~may~~may (on a joint and several basis), from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower Representative to the ~~Person appointed by the Borrower to arrange an incremental Facility (such Person~~ Administrative Agent (who ~~(i) may be~~ shall promptly notify the ~~Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”~~applicable Lenders) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 ~~revolving credit~~ term loan 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice 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~~ Increase and the Term Commitment Increase, the “New Loan Commitments”) in by an amount not to exceed ~~the sum of~~ (x) ~~the greater~~ a Dollar Amount of ~~(A)~~ $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) 400,000,000 (the “Cash-Capped Incremental Facility”), ) plus (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum First Lien Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such ~~sum~~amount, at any such time, the “Incremental Amount”); provided that (i) no Event of Default would exist after giving effect to any such request and (ii) any such request for an increase shall be in a minimum amount of the lesser of (x) a Dollar Amount of $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ 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 the Prepayment-Based Incremental Facility~~2.17, ~~if any, prior to utilization of the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used~~ will count towards the Ratio-Based Incremental Facility ~~(to the extent compliant therewith)~~ prior to ~~utilization of~~ reducing the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence maximum amount under the Cash-Capped Incremental ~~Facility,~~ Facilities (C) to the ~~Borrowers may redesignate all or any portion~~ extent permitted by the pro forma calculation of ~~Indebtedness originally designated as incurred under~~ the ~~Cash-Capped Incremental Facility or~~ First Lien Net Leverage Ratio required prior to the ~~Prepayment-Based Incremental Facility as having been incurred under the~~ incurrence of such Ratio-Based Incremental ~~Facility so long as, at~~ Facility). At the time of sending such ~~redesignation~~notice to the applicable Lenders, the ~~Borrowers would be permitted~~ Borrower Representative (in consultation with the Administrative Agent) shall specify the time period within which each applicable Lender is requested to ~~incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility~~ respond (which, ~~for~~ unless the ~~avoidance of doubt~~Administrative Agent otherwise agrees, shall ~~have~~ in no event be less than ten Business Days from the ~~effect~~ date of ~~increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility, as applicable, by the amount~~ delivery of such ~~redesignated Indebtedness~~notice); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds. (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 ~~to participate in any New Loan Commitments~~ may elect or decline, in its sole discretion, to ~~participate in~~ 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, as applicable, 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, each L/C Issuer and the Swing Line Lender (~~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~~ consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed) to become Lenders pursuant to a joinder agreement to this ~~Agreement. Neither the Administrative Agent nor the Collateral Agent (~~Agreement in ~~their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14~~ form 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 Borrowers must provide~~ substance reasonably satisfactory to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestAgent. (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~~ Loan 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,~~ increase or New Term ~~Facility or New Revolving~~ Facility among the applicable Lenders. The ~~Incremental Arranger~~ Administrative Agent shall promptly notify the applicable Lenders of the final allocation of such ~~increase,~~ increase or New Term ~~Facility or New Revolving~~ Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term ~~Facility or New Revolving~~ Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the ~~Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)~~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, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date~~, in the case of an increase to an existing Term Loan Tranche~~, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in 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)~~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 ~~(subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i))~~ would exist after giving effect to such increase; , (ii) ) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans~~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 (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 B Facility 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 and/or Section 6.16 with respect to Holdings, the Borrowers, all Material Subsidiary Guarantors and each other 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 Term Facility shall be agreed to by the Lenders providing such increase or New Term Facility, as applicable, and the Administrative Agent and the Borrowers; provided, further, in connection with the incurrence of any New Term Loans, if the proceeds of such New Term Loans 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 Acquisition, then (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) no Event of Default under Sections 8.01(a), (f) or (g) would exist after giving effect to such incurrence (“Permitted Acquisition Provisions”). (e) On the Increase Effective Date with respect to ~~an increase to an existing~~ 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 the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C ~~Obligations~~ 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) participations hereunder in L/C ~~Obligations represented~~ Advances and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase ~~Lender~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), 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~~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~~ payment, have the ~~other Facilities, not be Guaranteed by any Person that is not a Borrower or Guarantor under each of the other Facilities~~same guarantees as, and be ~~unsecured or~~ unsecured, secured either on a ~~pari passu~~ first lien “equal and ratable” basis with the other Facilities or on a “junior” ~~basis to the other Facilities~~basis, in each case over the same ~~(or less)~~ Collateral that secures the Facilities (and in each case, the ~~case~~ application of any proceeds of the Collateral securing such ~~junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or~~ New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the ~~Incremental Arranger and, if such Incremental Arranger is not the~~ Administrative Agent, ; it being understood that the Intercreditor Agreement is reasonably satisfactory to the Administrative Agent), (ii) the New Term Facility ~~or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and~~ shall share ratably in any ~~event no more favorably than)~~ prepayments of the Term ~~Facility~~ Loans pursuant to Section 2.05 (or ~~Revolving Credit Facility, as~~ otherwise provide for more favorable prepayment treatment for the ~~case may be, unless the Borrowers otherwise elect (but in any event no more favorably~~ then outstanding Term Loan Tranches than the ~~existing~~ Term Loans ~~or Revolving Credit Loans, as applicable),~~ under such New Term Facility) and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the ~~date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All~~all-in ~~Yield payable by~~ yield (whether in the ~~Borrowers~~ form of interest rate margins, original issue discount, upfront fees, or Eurocurrency Rate or Base Rate floors (but not arrangement or underwriting fees paid to arrangers for their own account) and equating original issue discount and upfront fees to interest rate for purposes of this calculation, assuming a four-year life to maturity) applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 50 basis points higher than the corresponding ~~All~~all-in ~~Yield payable by~~ yield (giving effect to interest rate margins, original issue discount, upfront fees and Eurocurrency Rate and Base Rate floors, in the ~~Borrowers~~ case of original issue discount and upfront fees calculated as provided in the preceding parenthetical) for any Term Loan Tranche incurred on the ~~InitialTranche B Term Loans~~Closing Date, unless the ~~All~~all-in ~~Yield~~ yield with respect to ~~the InitialTranche B~~ each applicable Term ~~Loans~~ Loan Tranche is increased to the amount necessary so that the difference between the ~~All~~all-in ~~Yield~~ yield with respect to such New Term Facility and the corresponding ~~All~~all-in ~~Yield~~ yield on ~~the InitialTranche B~~ such applicable Term ~~Loans~~ Loan Tranche is equal to 75 50 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o.

Appears in 1 contract

Sources: Credit Agreement (Axalta Coating Systems Ltd.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, at any time and from time to time ~~after~~ prior to the ~~Closing~~ Maturity Date, ~~upon~~ by written notice ~~by the Parent Borrower~~ to the ~~Person appointed by the Borrower to arrange an incremental Facility~~ Administrative Agent (~~such Person (who (i) may be~~ whereupon the Administrative ~~Agent, if it so agrees, or (ii) any other Person appointed by~~ Agent shall promptly deliver a copy thereof to each of the ~~Parent Borrower~~Lenders), ~~the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof,~~ request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 ~~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~~collectively, the “~~New Revolving Commitment~~Incremental Facilities”) ~~and~~ consisting of a new tranche of term loans (~~iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a~~ an “~~New~~ Incremental Term Facility”) or a new tranche of revolving loans or an increase in the Aggregate Revolving Commitment (an “Incremental Revolving Facility”), or a combination thereof; provided, however, that, at the time of any such request by the Borrower and upon the effectiveness of any ~~advance made by a Lender thereunder~~Incremental Facility Amendment referred to below, ~~a “New Term Loan”;~~ no Event of Default shall exist, and the ~~commitments thereof~~Borrower shall be in compliance with Section 8.4, 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) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (and after giving effect to any acquisition consummated concurrently therewith determined on a Pro Forma Basis ~~and all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.10) (the “Cash-Capped~~ as if such Incremental ~~Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long~~ Facility had been outstanding as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceedsmost recent Covenant Determination Date. (b) ~~Any Lender approached to participate~~ The Incremental Facilities shall together be in ~~any New Loan Commitments may elect or decline~~an aggregate original principal amount not exceeding $100,000,000, ~~in its sole discretion, to participate in such increase or new facility. The Borrowers may also invite additional Eligible Assignees reasonably satisfactory to the~~ and each 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 (in each case, to the extent the consent of any of the foregoing would be required to assign Revolving Credit Loans or Term Loans, as applicable, to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) Facility shall be ~~required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall~~ in an aggregate original principal amount not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If less than $20,000,000. Each Incremental Facility: (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 Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with all other Loans and shall be equally and ratably secured by the ~~other Facilities, not be Guaranteed by any Person~~ Collateral; and (ii) shall have a weighted-average life that is not shorter than that of the Term B Loans, the Revolving Commitments and the Delayed Draw Term Loans, taken as a whole. The Incremental Facilities may be priced differently than the Term B Loans, Revolving Loans and Delayed Draw Term Loans; provided, however, that if any Loans under any Incremental Term Facility shall bear interest on the unpaid principal amount thereof at an annual rate that exceeds by more than 0.25% (i.e. 25 basis points) the annual rate of interest then payable hereunder on the Term B Loans, then, simultaneously with the addition of such Incremental Term Facility, the Applicable Margin with respect to the Term B Loans shall be automatically amended so that the annual interest rate for Term B Loans that are Base Rate Loans or Eurodollar Loans shall be the same as the annual rate applicable to Loans under such Incremental Term Facility. (c) Any such written notice from the Borrower shall set forth the requested amount and terms of the relevant Incremental Facilities. The Borrower may arrange for one or ~~Guarantor~~ more banks or other financial institutions, each of which shall be reasonably satisfactory to the Administrative Agent and the Borrower (any such bank or other financial institution being herein called an “Additional Lender”), to extend commitments under the Incremental Facilities, and each existing Lender shall be afforded an opportunity, but shall not be required, to provide a portion of any such Incremental Facilities. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement, and each Additional Lender shall become a Lender under this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parent Company, the Borrower, each (if any) existing Lender agreeing to provide such Commitment, each (if any) Additional Lender, and the Administrative Agent. (d) Each Incremental Facility Amendment shall, without the consent of any of the other ~~Facilities~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable determination of the Administrative Agent, to effect the provisions of this Section 2.15, including, without limitation, the last sentence of paragraph (b), and each such Incremental Facility Amendment shall be ~~unsecured or secured either on a pari passu basis with~~ binding upon all of the ~~other Facilities or on a “junior” basis~~ parties to ~~the other Facilities, in~~ this Agreement. (e) The effectiveness of each ~~case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving~~ Incremental Facility ~~or New Term Facility, such New Revolving Facility or New Term Facility~~ Amendment shall be subject to ~~intercreditor arrangements that are reasonably satisfactory~~ the satisfaction on the date thereof of each of the conditions set forth in Section 5.3. The proceeds of the Incremental Facilities will be used to finance Permitted Acquisitions, for working capital and for other general corporate purposes. (f) Anything in this Section 2.15 express or implied to the ~~Incremental Arranger and, if such Incremental Arranger is not~~ contrary notwithstanding: (i) the Administrative ~~Agent,~~ Agent and the ~~Administrative Agent),~~ Arranger shall have the exclusive rights to allocate Incremental Commitments among the Lenders and Additional Lenders providing the Incremental Facilities; (ii) no Incremental Facilities and no Incremental Commitments may become effective on or after the ~~New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as~~ Maturity Date; (~~and in any event no more favorably than~~iii) the ~~Term Facility or Revolving Credit Facility~~Aggregate Incremental Commitment shall not exceed $100,000,000, as and the ~~case may be, unless the Borrowers otherwise elect (but in~~ aggregate principal amount of all Incremental Loans from time to time outstanding shall not at any ~~event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable)~~time exceed $100,000,000, and (~~iii~~iv) ~~with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right~~ except as otherwise provided or contemplated by the foregoing paragraphs of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facilitythis Section 2.15, the ~~All-in Yield payable by~~ Incremental Facilities, the ~~Borrowers applicable to such New Term Facility~~ Incremental Commitments and the Incremental Loans shall be ~~determined~~ subject to and governed by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date all of the ~~then o~~terms and conditions contained herein.

Appears in 1 contract

Sources: Credit Agreement (Regent Communications Inc)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (such Person (who may be (i) ~~may be~~ the Administrative Agent, if it so ~~agrees,~~ agrees or (ii) any other Person appointed by the ~~Parent Borrower~~Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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 (xw) the greater of (A) $~~100,000,000~~ 70,000,000 and (B) 100% of Four Quarter Consolidated ~~EBITDA for~~ EBITDA, minus the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ amount incurred prior to the date of incurrence thereof under the Second Lien Cash-Capped Incremental Amount (and ~~after giving effect to any acquisition consummated concurrently therewith on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent~~ not reclassified in accordance with the ~~definition~~ provisions of ~~“Consolidated EBITDA” and Section 1.10~~the Second Lien Credit Agreement) (the “Cash-Capped Incremental Facility”), (yx) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum ~~Leverage / Minimum Interest Coverage~~ Ratio-Based Requirement is ~~satisfied and~~ satisfied, (zy) an amount equal to (i)(A) all voluntary prepayments of long term Indebtedness (1) including pari passu Term Loans (including, for the avoidance of doubt, any New Term Loans that are pari passu in right of payment and security with the Initial Term Loans) made pursuant to Section 2.05(a)) ~~and~~ (2in an amount equal to the face amount of the principal amount voluntarily prepaid) ~~New Incremental Notes that are secured on a pari passu basis with the Term Loans~~ and (B) all repurchases and/or cancellations of long term Indebtedness (1) including pari passu Term Loans (including, for the avoidance of doubt, any New Term Loans) made pursuant to the terms ~~hereof~~ hereof) (in an amount equal to the face amount of the principal amount repurchased and/or cancelled) and ~~(2) New Incremental Notes that are secured on a pari passu basis with the Term Loans,~~ (ii) all voluntary prepayments of ~~all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and~~ revolving credit loans (~~iii) voluntary prepayments of~~ including Revolving Credit Loans (including, for the avoidance of doubt, any New Revolving 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)~~applicable revolving credit commitment, in each case, to the extent not funded with the proceeds of long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”), and (z) in the case of any New Loan Commitment that serves to effectively extend the maturity date applicable to any Existing Tranche, an amount equal to the Existing Loans under such Existing Tranche replaced with such New Loan Commitment (such sum, at any such ~~time~~time and subject to Section 1.02(i), the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in ~~an Alternative Currency~~a foreign currency, the ~~Alternative Currency Equivalent of~~ equivalent principal amount thereof then outstanding in such ~~amount~~foreign currency, converted to Dollars in accordance with Section 1.08, 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~~ Equivalent Debt incurred 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o:

Appears in 1 contract

Sources: First Lien Credit Agreement

Incremental Facilities. (a) The Borrowers may, from time to time after the Closing Date, upon notice by the Parent Borrower to the Person appointed by the Parent Borrower to arrange an incremental Facility (such Person (who (i) may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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) (i) the greater of (A) $~~100,000,000~~ 61,000,000 and (B) 100% of Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are ~~available~~ delivered or, at the option of the Parent Borrower, otherwise available, (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), in each case, minus the amount incurred prior to the date of incurrence thereof under (1) any New Incremental Debt incurred in reliance on this clause (x) and 2) any Ratio Debt incurred in reliance on clause (x) of the first proviso to the first paragraph of Section 7.01, plus (ii) unused amounts under Section 7.01(l) (provided that any usage under this clause (x)(ii) shall reduce the amount available under Section 7.01(l) and, to the extent secured, clause (25) of the definition of “Permitted Liens”) (the amount described in this clause (x), the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental ~~Notes~~ Debt that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental ~~Notes~~ Debt that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (~~excluding~~other than, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)), minus the amount incurred prior to the date of incurrence thereof under (1) any New Incremental Debt incurred in reliance on this clause (z) and (2) any Ratio Debt incurred in reliance on clause (y) of the first proviso to the first paragraph of Section 7.01, and in the case of any such prepayment or repurchase at a price below par, based on the amount of ~~the actual cash expenditure~~ principal repaid or repurchased (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to this Section 2.14 and New Incremental ~~Notes~~ Debt issued pursuant to Section 2.15: : (A) the Borrowers shall be deemed to have used amounts under the Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental ~~Facility~~Facilities, and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, , (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental ~~Notes~~ Debt pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under the ~~Ratio-~~ Ratio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or and/or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, , (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), ~~and~~ and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash ~~proceeds~~proceeds incurred pursuant to this Section 2.14 and/or New Incremental Debt being incurred at such test date in calculating such Consolidated First Lien Net Leverage Ratio, Consolidated Senior Secured Net Leverage Ratio or Consolidated Total Net Leverage Ratio shall be excluded from netting (it being understood that to the extent such proceeds are to be used to repay Indebtedness, the Borrowers shall be permitted to give Pro Forma Effect to such repayment). The Borrowers may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as the Borrowers may deem appropriate. (b) Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The Borrowers may also invite additional Eligible Assignees reasonably satisfactory to the Incremental Arranger and, solely in connection with a Revolving Credit Commitment Increase or New Revolving Facility, with the consent of the Administrative Agent, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) ) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase applicable to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment Facility and (y2) ~~if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on~~ no amortization or mandatory commitment reduction prior to the ~~Increase Effective~~ Maturity Date ~~be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ applicable to 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 Facility 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~~required, ~~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~~C) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any ~~such junior secured New Revolving Facility or~~ increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term ~~Facility~~Loans or Specified Refinancing Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the then longest remaining Weighted Average Life to Maturity of, any other outstanding Term Loans, New ~~Revolving~~ Term Loans or Specified Refinancing Term Loans, as applicable; provided that Extendable Bridge Loans and Indebtedness Incurred pursuant to the Inside Maturity Date Exception may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of the then outstanding Term Loans, and (D) in the case of any New Term Facility or other than in the case of Extendable Bridge Loans and Indebtedness Incurred pursuant to the Inside Maturity Date Exception, (1) such New Term Facility shall ~~be subject to intercreditor arrangements that are reasonably satisfactory to~~ have a final maturity no earlier than the ~~Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent),~~ then Latest Maturity Date of any Term Loan Tranche and (ii2) the ~~New Term Facility or New Revolving Facility, as applicable, shall, for purposes~~ Weighted Average Life to Maturity of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be ~~determined by~~ no shorter than that of any existing Term Loan Tranche; (iii) all other terms applicable to any New Term Facility or Revolving Facility (including, subject to any applicable limitations specifically set forth above in this clause (d) or below in clause (f), will be as agreed between the Borrowers and the Lenders providing such New ~~Term~~ Revolving Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such or New Term ~~Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points~~Facility; provided that ~~this clause~~ the negative covenants and events of default will (~~iii~~x) ~~shall~~ be not ~~apply~~ materially more favorable, taken as a whole, to such Lenders than the terms of such existing Revolving Facility (in the case of any New Revolving Facility) or existing Term Facility ~~that~~ (~~A) is~~ in ~~an aggregate principal amount (together with any other such~~ the case of a New Term Facility) ~~equal~~ unless (A) the Lenders under the existing Revolving Facility or Term Facility, as applicable, also receive the benefits of such more favorable terms (and to the extent the existing Lenders under the Revolving Facility or ~~less than $100,000,000~~New Term Facility are to receive the benefit of such terms, such terms may be incorporated into the Loan Documents for the benefit of all existing Lenders under the Revolving Facility or Term Facility without further amendment requirements, including, for the avoidance of doubt, at the option of the Parent Borrower, any increase in the applicable interest rate margin or amount of amortization in line with the New Term Facility to achieve fungibility with such existing Facilities) or (B) ~~has a final maturity later than one year~~ any such provisions apply only after the ~~Latest Maturity Date~~ maturity date of the ~~then o~~initial Revolving Facility or Term Facility, as applicable or (y) be reasonably acceptable to the Administrative Agent; and (iv) to the extent reasonably requested by the Incremental Arranger, the Incremental Arranger shall have received legal opinions, resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 or delivered from time to time pursuant to Section 6.12, Sect

Appears in 1 contract

Sources: Credit Agreement (Paya Holdings Inc.)

Incremental Facilities. (a) ~~The Borrowers may, from time to time after~~ Provided that no Default or Event of Default exists or would result therefrom the ~~Closing Date, upon~~ Borrower may by written notice ~~by the Parent Borrower~~ to the ~~Person appointed by~~ Administrative Agent prior to the ~~Borrower~~ Maturity Date request (A) one or more new tranches of term loan facilities (any such new tranche, an “Incremental Term Facility”, any loans made pursuant to ~~arrange~~ an ~~incremental Facility (such Person (who (i) may be~~ Incremental Term Facility, “Incremental Term Loans”, and the ~~Administrative Agent, if it so agrees, or (ii) any other Person appointed by~~ commitments in respect of the ~~Parent Borrower)~~Incremental Term Loans, the “Incremental ~~Arranger~~Term Commitments”) ~~specifying the proposed amount thereof and the proposed currency denomination thereof, request~~ and/or (iB) an increase in Revolving Commitments (any such increased Revolving Commitments, an “Additional Revolving Commitment” and any loans made in respect thereof, “Additional Revolving Loans”; the ~~Commitments under any~~ Additional Revolving ~~Tranche (which shall be on~~ Loans with the ~~same terms as~~Incremental Term Loans, collectively, the “Incremental Loans”, and ~~become part of~~the Additional Revolving Commitments, collectively with any Incremental Term Commitments, the ~~Revolving Tranche proposed to be increased) (a~~ “~~Revolving Credit Commitment Increase~~Incremental Commitments”), ~~(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 case of ~~one or more new revolving credit facilities to the Facilities~~all Incremental Commitments, 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) in an aggregate total principal amount not to exceed (1) the sum of (x) ~~the greater of~~ $350,000,000 minus (Ay) ~~$100,000,000 and~~ Incremental Loans previously incurred pursuant to clause (Bx) ~~Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available~~ plus (~~and~~ 2) additional amounts so long as after giving effect ~~to any acquisition consummated concurrently therewith on a Pro Forma Basis~~ thereto (and ~~all other appropriate pro forma adjustment events consistent with~~ assuming the ~~definition of “Consolidated EBITDA” and Section 1.10~~Commitments are fully drawn) ~~(the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as~~ the Maximum Net Leverage ~~/ Minimum Interest Coverage Requirement~~ Ratio is ~~satisfied and (z) an amount equal~~ not greater than 3.00 to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”)1.00; provided that (i) any such request for an ~~increase~~ Incremental Loan shall be in a minimum amount of ~~the lesser of~~ $10,000,000 (~~x) $5,000,000~~ or, ~~in the case of any New Loan Commitments denominated in an Alternative Currency~~if less, the ~~Alternative Currency Equivalent~~ remaining portion of the available Incremental Commitment) and integral multiples of $1,000,000 in excess of such amount, and (yii) the ~~entire amount~~ Borrower may not submit more than four such requests during the term 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:~~ Agreement. Each such notice shall specify (Ai) the ~~Borrowers~~ date (each, an “Incremental Commitment Effective Date”) on which the Borrower proposes that the Incremental Commitments shall be ~~deemed~~ effective, which shall be a date not less than 15 Business Days (or such other date as agreed by the Administrative Agent) after the date on which such notice is delivered to ~~have used amounts under~~ the ~~Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facility~~Administrative Agent, and ~~the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility~~ (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (Cii) the ~~Borrowers may redesignate all~~ identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental Lender”) to whom the Borrower proposes any portion of ~~Indebtedness originally designated as incurred under~~ such Incremental Commitments be allocated and the ~~Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time~~ amounts of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness)allocations; ~~provided, that such Indebtedness shall be automatically redesignated to the extent~~ provided that, ~~at the end of~~ any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (b) Any Lender approached to ~~participate in any New Loan~~ provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to ~~participate in~~ provide an Incremental Commitment. Each Lender shall notify the Administrative Agent within the required time period whether or not it agrees to provide any portion of the applicable Incremental Commitments and, if so, shall specify the amount of such Incremental Commitments it desires to be allocated to it. Any Lender not responding within such time period shall be deemed to have declined to increase ~~or new facility~~its Commitments. ~~The Borrowers may also invite additional Eligible Assignees reasonably satisfactory to~~ Such Incremental Commitments shall become effective as of such Incremental Commitment Effective Date; provided that, (i) the Borrower shall pay all reasonable and documented out-of-pocket expenses (including any upfront fees and reasonable and documented fees and out-of-pocket expenses of counsel) of the Incremental ~~Arranger and, solely in connection with a Revolving Credit Commitment Increase or New Revolving Facility, with the consent of~~ Lenders and the Administrative Agent, ~~each L/C Issuer~~ (~~in each case, to~~ ii) 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~~ Borrower shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide have delivered to the Administrative Agent a certificate dated as of such Incremental Commitment Effective Date and signed by a Financial Officer (x) certifying and attaching the ~~documentation providing for such New Loan Commitments~~ resolutions adopted by the Borrower approving the applicable Incremental Commitments, and (y) certifying that (1) no Default exists on such Incremental Commitment Effective Date before or after giving effect to such Incremental Commitments (provided, however, that if and to the extent such Incremental Commitments have been requested for the purpose of funding, in whole or in part, a ~~notice~~ Limited Condition Transaction, the time elected for determining whether a Default or an Event of Default exists shall be determined in accordance with the time elected for such determination pursuant to Section 2.25), (2) both before and after giving effect to the Incremental Commitments, the representations and warranties of the ~~identity~~ Loan Parties contained herein and in the other Loan Documents are true and correct in all material respects on and as of ~~any new Lender; provided further~~the Incremental Commitment Effective Date (except to the extent such representations and warranties relate solely to an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date) (provided, however, that if and to the extent such ~~new~~ Incremental Commitments have been requested for the purpose of funding, in whole or in part, a Limited Condition Transaction, the time elected for determining compliance with representations and warranties required to be true and correct shall be determined in accordance with the time elected for determining compliance therewith pursuant Section 2.25), and (3) the Borrower is in pro forma compliance with each of the financial covenants set forth in Section 6.1 as of the last day of the most recently ended fiscal quarter after giving effect to such Incremental Commitments, calculated assuming the Incremental Commitments are fully drawn (provided, however, that if and to the extent such Incremental Commitments have been requested for the purpose of funding, in whole or in part, a Limited Condition Transaction, such compliance shall be calculated in accordance with the time elected for determining compliance therewith pursuant Section 2.25), (iii) the Incremental Commitments shall be effected pursuant to one or more agreements in form and substance satisfactory to the Administrative Agent, executed and delivered by the Borrower, each Incremental Lender and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Lender shall ~~agree~~ be subject to ~~provide applicable “know your customer”, anti-money laundering rules and regulations, including~~ the ~~Patriot Act~~requirements set forth in Section 2.17(g), and (iv) the Borrower shall deliver or cause to be delivered a certificate as to the foregoing and any legal opinions, reaffirmations of security, reaffirmations of guarantees or other ~~customary onboarding information~~ documents reasonably requested by the Administrative Agent ~~upon request. (c) If (i)~~ in connection with any such transaction. On each Incremental Commitment Effective Date, subject to the terms and conditions set forth in this Section, each Additional Revolving Commitment shall be 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~~ Commitment and part of the Revolving Facility ~~is added in accordance with this Section 2.14~~(and not a separate Facility hereunder), each Incremental Revolving Lender providing such Additional Revolving Commitment shall be, and have all the ~~Borrowers shall determine the effective date (the “Increase Effective Date”)~~ rights of, a Revolving Lender, and the ~~final allocation of~~ Revolving Loans made by it on such ~~increase, New Term Facility or New~~ Incremental 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 Commitment 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,~~ Date pursuant to this Section ~~2.14~~shall be Revolving Loans, for all purposes of this ~~Agreement~~ Agreement. Except for purposes of this Section 2.22(a), any Additional Revolving Commitments that are designated as an increase to the Revolving Commitments shall be deemed to be effective as of the applicable Incremental Revolving Commitment Effective Date, and after the ~~other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and~~ effectiveness of such Additional Revolving Commitments, Revolving Commitments for all purposes of this Agreement. On the Incremental ~~Arranger~~ Commitment Effective Date, all outstanding Revolving Loans shall be reallocated among the Revolving Lenders (~~and the Lenders hereby authorize the~~ including any Additional Lenders) 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~~ that, after giving effect to the ~~Term Loan Tranche or~~ Additional Revolving ~~Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with~~ Commitments, each Revolving Lender (including each Additional Lender) shall hold its ~~terms as set forth herein, including, for the avoidance of doubt, at the option~~ pro rata Share of the ~~Parent Borrower~~Revolving Loans. In addition, ~~with respect to any~~ upon each increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving ~~Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility~~ Commitments pursuant to this Section ~~2.14~~2.22, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving ~~Credit~~ Lender immediately prior to such increase will automatically and without further ~~act~~ action be deemed to have assigned to each Additional Lender providing a portion of the ~~increase to the~~ Additional Revolving ~~Credit Commitments (each, a “Revolving Commitment Increase Lender”)~~Commitments, and each such ~~Revolving Commitment Increase~~ Additional 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)~~ action be deemed to have assumed, a portion of such Revolving ~~Credit~~ Lender’s participations hereunder in outstanding ~~L/C Obligations~~ Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, ~~the percentage~~ each Revolving Lender (including each Additional Lender) shall hold its pro rata Share of the ~~aggregate outstanding~~ (i) participations hereunder in ~~L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage~~ Letters of ~~the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment~~ Credit, and (yii) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made participations hereunder ~~(reflecting such increase~~ in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06Swing Line Loans. 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 Section 2.22. (b) The Administrative Agent shall notify the ~~immediately preceding sentence~~Lenders promptly upon receipt of the Borrower’s notice of each Incremental Commitment Effective Date. Any existing Lender that has a Note and participates in any Incremental Commitment shall, following request therefor and substantially contemporaneously with the delivery of its Note to be replaced to the Borrower, receive a replacement Note that evidences the aggregate principal amount of its Loans outstanding hereunder. Any new Lender requesting a Note shall receive such a Note in an amount equal to the aggregate principal amount of its Incremental Commitment. (c) The ~~additional Term~~ Incremental Commitments established pursuant to this Section 2.22, and all Loans thereunder, shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents and shall, without limiting the foregoing, benefit equally and ratably with the Obligations from the Guarantors and security interests created by the Security Documents. (d) The terms and provisions (including the commitment fee) of the Additional Revolving Loans made ~~under the Term Loan Tranche subject~~ pursuant to ~~the increases~~ Additional Revolving Commitments (and such Incremental Commitments) 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 identical to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment ~~with~~ and of security with) the ~~other Facilities, not be Guaranteed by~~ Revolving Loans and Revolving Commitments in place on the applicable Incremental Commitment Effective Date. The pricing applicable to any Person that is not a Borrower or Guarantor under each of the other Facilities, and be unsecured or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Incremental Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the ~~Borrowers~~ Borrower and the Lenders providing such ~~New~~ Incremental Term Facility and shall be reasonably satisfactory to the Administrative Agent; provided that, the Incremental Term Loans (i) shall have the same Maturity Date and (ii) shall not be have amortization of more than ~~75 basis points higher than~~ 5% per annum of the ~~corresponding All-~~original principal amount of such Incremental Term Facility. (e) Commitments in ~~Yield payable~~ respect of any Incremental Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, which amendment shall be in form and substance reasonably satisfactory to the Administrative Agent and its counsel and executed by the ~~Borrowers for~~ Borrower, each Additional Lender and the ~~InitialTranche B Term Loans~~Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent (acting on the direction of the Additional Lenders), to effect the provisions of this Section 2.22. In addition, unless otherwise specifically provided herein, all references in Loan Documents to Revolving Loans shall be deemed, unless the ~~All-~~context otherwise requires, to include references to Incremental Loans made pursuant to Incremental Commitments. (f) The Borrower and the Administrative Agent shall be entitled, without consent of any other Lender (except Lenders participating in ~~Yield~~ the relevant Incremental Term Facility), to enter into any technical amendments they shall reasonably deem necessary in order to add an Incremental Term Facility to this Agreement, including to add Incremental Term Loans as Secured Obligations ranking pari passu and sharing pro rata with ~~respect~~ the Revolving Facility, and to address the rights of Additional Lenders that have made Incremental Term Loans to vote on amendments, including all affected Lender votes as may be applicable. This Section 2.22 shall supersede any provisions in Section 2.18 or 9.2 to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then ocontrary.

Appears in 1 contract

Sources: Credit Agreement (Globant S.A.)

Incremental Facilities. (a) ~~The Borrowers may,~~ At any time and from time to ~~time after the Closing Date~~time, ~~upon notice by the Parent Borrower~~ subject to the ~~Person appointed by~~ terms and conditions set forth herein the Borrower may, by notice to ~~arrange an incremental Facility (such Person (who (i) may be~~ the Administrative ~~Agent, if it so agrees, or~~ Agent (~~ii) any other Person appointed by~~ whereupon the ~~Parent Borrower~~Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add additional Term Loans or add one or more additional tranches of term loans (the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (a “Revolving Credit Commitment IncreaseTerm Loans”), one or more increases in the Revolving Facility Commitments (~~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~~Incremental Revolving Increases”), ~~(iii) the addition of~~ or one or more ~~new~~ additional tranches of revolving ~~credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ commitment (~~each, a “New Revolving Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”; and the commitments thereof,~~ the “~~New~~ Incremental Revolving Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term CommitmentFacility Commitments” and together with the ~~Revolving Credit Commitment Increase, the New Revolving Commitments~~ Incremental Term Loans and the ~~Term Commitment Increase~~Incremental Revolving Increases, the “~~New Loan Commitments~~Incremental Facilities”), in each case subject to the terms and conditions in this Section 2.22. (b) ~~in an~~ Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities shall not ~~to exceed the sum of~~ exceed: (xi) the greater of (Ax) $~~100,000,000~~ 19.0 million and (By) 42% of Consolidated EBITDA of the Borrower for the ~~most recently ended~~ prior four consecutive fiscal ~~quarter period~~ quarters for which ~~internal financial statements~~ the Required Financial Statements required to be delivered have been or are ~~available (and after giving effect~~ required to ~~any acquisition consummated concurrently therewith on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent with~~ have been delivered to the ~~definition~~ Administrative Agent pursuant to Section 5.04, in each case determined at the time of ~~“Consolidated EBITDA” and Section 1.10)~~ incurrence (the “~~Cash-Capped~~ Fixed Incremental ~~Facility~~Amount”; net of the aggregate amount of Incremental Equivalent Debt incurred in reliance on the Fixed Incremental Amount), ; plus (yii) an unlimited amount ~~(the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement~~ of Indebtedness that is ~~satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are~~ secured on a pari passu basis with the ~~Term Loans~~ Facilities if, on a Pro Forma Basis, the First Lien Net Leverage Ratio is equal to or less than 4.15:1.00; plus (iii) an unlimited amount of junior lien facilities or unsecured debt if (x) in the case of junior lien facilities, on a Pro Forma Basis, the Secured Net Leverage Ratio is equal to or less than 4.15:1.00 and (By) ~~all repurchases~~ in the case of unsecured debt, the Total Net Leverage Ratio is equal to or less than 3.90:1.00 (1clauses (b)(ii) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such timeabove, the “Ratio Incremental Amount”); (the sum of the amounts in clauses (i) through (iii) above, the “Available Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 Facilities may be incurred under ~~the Ratio-Based Incremental Facility~~ clauses (~~to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized~~ i) through (iii) in a single transaction by first calculating the ~~incurrence~~ portion of the Indebtedness being incurred under ~~the Ratio- Based Incremental Facility~~ clauses (ii) and/or (iii) above (without ~~inclusion~~ giving effect to the Indebtedness being incurred under clause (i) above) and second calculating the portion of the Indebtedness being incurred under clause (i) above. Any Indebtedness incurred under clause (i) above shall be automatically reclassified as Indebtedness incurred under clause (ii) or (iii) above if the Borrower meets the applicable leverage ratio under clause (ii) or (iii) at such time on a Pro Forma Basis (provided that Pro Forma Basis shall not be calculated net of proceeds of any ~~amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the~~ incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such ~~redesignation, the Borrowers would~~ Incremental Term Loans). Each tranche of Incremental Term Loans shall be ~~permitted to incur the~~ in an integral multiple of $1,000,000 and in an aggregate principal amount ~~of Indebtedness being so redesignated under the Ratio-Based Incremental Facility~~ that is not less than $5,000,000 (~~which, for the avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility~~ or ~~the Prepayment-Based Incremental Facility, as applicable,~~ such lesser minimum amount approved by the ~~amount of such redesignated Indebtedness~~Administrative Agent in its reasonable discretion); ~~provided,~~ provided that such ~~Indebtedness shall~~ amount may be ~~automatically redesignated to~~ less than the ~~extent that, at~~ applicable minimum amount or integral multiple amount if such amount represents all the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the remaining availability under the ~~Ratio-Based~~ Fixed Incremental ~~Facility at the time of incurrence, any cash proceeds~~Amount. (bc) ~~Any Lender approached~~ Each notice from the Borrower pursuant to ~~participate in any New Loan~~ this Section 2.22 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Increases and/or Incremental Revolving Facility Commitments. Incremental Term Loans, Incremental Revolving Increases and/or Incremental Revolving Facility Commitments may ~~elect~~ be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide Incremental Term Loans, Incremental Revolving Increases or ~~decline, in its sole discretion,~~ Incremental Revolving Facility Commitments nor shall the Borrower be required to offer any existing Lender the opportunity to participate in such ~~increase~~ Incremental Facility), in each case, on terms permitted under this Section 2.22 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 any Additional Lender; provided that the Administrative Agent, and, with respect to any Incremental Revolving Increase or Incremental Revolving Facility Commitment, each ~~L/C Issuer~~ Issuing Bank shall have consented (in each case, such consent not to be unreasonably withheld, delayed or conditioned) to any existing Lender or Additional Lender’s providing such Incremental Term Loans, Incremental Revolving Increases and/or Incremental Revolving Facility Commitments if such consent by the ~~extent~~ Administrative Agent (and each Issuing Bank) would be required under Section 9.04 for an assignment of Loans or Revolving Facility Commitments to such Lender or Additional Lender. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender or Additional Lender providing such Incremental Facility and the Administrative Agent, and so long as the requirements of this Section 2.22 are met, without the consent of any of the foregoing would be required to assign Revolving Credit Loans or Term Loans, as applicable, to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreementother existing Lender. ~~Neither the~~ 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify each Lender as to the ~~applicable Lenders~~ effectiveness of each Incremental Facility Amendment. Each of the ~~final allocation~~ parties hereto hereby agrees that, upon the effectiveness of ~~such increase, New Term~~ any Incremental 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 2.14Amendment, this Agreement and the other Loan ~~Documents may~~ Documents, as applicable, shall be deemed amended ~~in a writing~~ to the extent (~~which may be executed~~ but only to the extent) necessary to reflect the existence and ~~delivered by~~ terms of the ~~Borrowers~~ Incremental Facility and the Incremental ~~Arranger (and the Lenders hereby authorize the any such~~ Term Loans, Incremental ~~Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New~~ Revolving Increases and/or Incremental Revolving Facility ~~or to effectuate the increases to the Term Loan Tranche or~~ Commitments evidenced thereby. Upon each increase in Revolving ~~Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility~~ Facility Commitments in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section ~~2.14~~2.22, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving ~~Credit~~ Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender or Additional Lender providing ~~a portion of the increase to the~~ such Incremental Revolving ~~Credit Commitments~~ Increases (each, a an “Incremental Revolving ~~Commitment Increase~~ Lender”)) in respect of such increase or extension, and each such Incremental Revolving ~~Commitment Increase~~ Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving ~~Credit Lender~~▇▇▇▇▇▇’s participations hereunder in outstanding ~~L/C Obligations~~ Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in ~~L/C Obligations represented~~ Letters of Credit and (ii) the Administrative Agent may, in consultation with the Borrower, take any and all actions as may be reasonably necessary to ensure that, after giving effect to such Lender’s Incremental Revolving Facility Commitments or Incremental Revolving Increases, the percentage of the aggregate Revolving Facility Commitments held by each Revolving Lender (including each such Incremental Revolving ~~Commitment Increase Lender~~ Lender) will equal the percentage of the aggregate Revolving ~~Credit~~ Facility Commitments of all Revolving ~~Credit~~ Lenders ~~represented~~ presented by such Revolving ~~Commitment Increase~~ Lender’s Revolving ~~Credit~~ Facility Commitment ~~and~~ (ywhich may be accomplished, at the discretion of the Administrative Agent following consultation with the Borrower, (i) ~~if, on~~ by requiring the ~~date of such increase, there are any~~ outstanding Revolving ~~Credit~~ Loans ~~outstanding, such Revolving Credit Loans shall on or prior~~ to ~~the Increase Effective Date~~ be prepaid ~~from~~ with the proceeds of a new Borrowing, (ii) by causing non-increasing Revolving ~~Credit~~ Lenders to assign portions of their outstanding Revolving Loans ~~made hereunder~~ to Incremental Revolving Lenders or (~~reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied~~ iii) 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 a combination 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 Borrowingsforegoing)~~, so that~~. (i) Any ~~New Revolving~~ Incremental Facility ~~and New Term Facility shall~~ shall, as determined by the Borrower, rank pari passu or junior 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,~~ Obligations and be unsecured or secured by the Collateral on either a pari passu or junior basis with the Obligations (and to the extent subordinated in right of payment or security, subject to intercreditor arrangements on terms reasonably satisfactory to the Administrative Agent and the Borrower), (ii) any Incremental Term Loans that are secured on a pari passu basis with the ~~other~~ Obligations may provide for the ability of the Lenders or Additional Lenders providing such Incremental Term Loans to participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Term Loans (it being understood that any mandatory prepayments of any junior secured or unsecured Incremental Term Loans may not be made except to the extent that prepayments are made, to the extent required under the Term Facilities or ~~on a “junior” basis~~ (to the ~~other Facilities, in each case over the same (or less~~extent permitted hereunder) ~~Collateral that secures the Facilities (and in the case of~~ any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility Indebtedness that is ~~pari passu in right of payments and~~ secured on a pari passu basis with ~~InitialTranche B~~ the Obligations, first pro rata to the Term Facilities and any such pari passu secured Indebtedness), (iii) the interest rate, upfront fees and original issue discount for any Incremental Term Loans, Incremental Revolving Increase or Incremental Revolving Facility Commitments shall be as determined by the Borrower and the Lenders or Additional Lenders providing such Incremental Term Loans, Incremental Revolving Increase or Incremental Revolving Facility Commitments; provided that with respect to Incremental Term Loans ~~and~~ secured by Collateral on a pari passu basis with the Term Loans, in the event that the Effective Yield on such Incremental Term Loans (the “Incremental Yield”) exceeds the Effective Yield on the Term Loans hereunder by more than 0.50%, then the interest margins for the Term Loans hereunder shall automatically be increased to a level such that the Effective Yield on such Term Loans is ~~incurred~~ 0.50% below the Incremental Yield (it being agreed that (x) any amendment to the Applicable Margin on or the Initial Term Loans that became effective subsequent to the Closing Date but prior to the ~~date~~ effectiveness of the Incremental Term Loans shall be included in determining the Effective Yield and (y) any increase in Effective Yield to any existing facility required due to the application of a Eurocurrency Rate or ABR “floor” on any Incremental Facility shall be effected solely through an increase therein (or implementation thereof, as applicable)) (such adjustment, the (“MFN Adjustment”), (iv) except as otherwise provided in this Section 2.22, to the extent such terms are not substantially consistent with the existing Term Facility, the covenants, representations, events of default and guarantees of any such Incremental Term Loans shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant is ~~12 months after~~ added for the ~~Closing Date and under the Ratio-Based~~ benefit of any Incremental Facility, such covenant shall be deemed “reasonably satisfactory” to the ~~All-in Yield payable by~~ Administrative Agent if such financial maintenance covenant is (1) also added for the ~~Borrowers applicable to such New~~ benefit of any corresponding existing Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause or (~~iii~~2) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year only applicable after the Latest Maturity Date of any existing Term Facility), (v) the ~~then o~~final maturity date of any Incremental Term Loan shall be no earlier than the Maturity Date with respect to the Initial Term Loans (or, in the case of any Incremental Term Loans secured on a junior basis to the Incremental Facility or that is unsecured, the final maturity date of such Incremental Term Loans shall be no earlier than the date that is 91 days following the Maturity Date), (vi) the Weighted Average Life to Maturity of any Incremental Term Loan shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to prepayments), (vii) subject to clauses (v) and

Appears in 1 contract

Sources: Credit Agreement

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ 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 ~~Parent~~ 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 thereof~~ amount, and ~~the proposed~~ currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 revolving credit facilities to the ~~Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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”) in by an amount not to exceed at the time of such incurrence the sum of (w) in the case of any New Term Loans, New Term Commitments, New Revolving Loans or New Revolving Commitments that effectively extend the maturity date of, or refinance, any Facility, an amount equal to the portion of the Facility to be replaced with (or refinanced by) such New Term Loans, New Term Commitments, New Revolving Loans, and New Revolving Commitments, and the payment of fees, expenses and premiums, if any, payable in connection therewith (the “Refinancing Incremental Amount”), (x) the greater of (A1) the amount of $~~100,000,000~~ 1,100,000,0001,500,000,000 and (B2) 100% of Consolidated EBITDA of the Borrower Parties for the ~~most recently ended~~ four fiscal quarter period most recently then ended for which ~~internal~~ financial statements ~~are available~~ have been delivered pursuant to Section 6.01(a) or (~~and after giving effect to any acquisition consummated concurrently therewith~~ b), as applicable, calculated on a Pro Forma Basis for such period, less amounts Incurred under Section 2.15(A) (and ~~all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.10~~any Permitted Refinancings thereof (or successive Permitted Refinancings)) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum First Lien Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to ~~(i)(A)~~ all voluntary prepayments of ~~(1)~~ pari passu Term Loans made pursuant to Section 2.05(a) and ~~(2) New Incremental Notes that are secured on a~~ repurchases of pari passu ~~basis with the Term Loans and (B) all repurchases of (1)~~ Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (~~excluding, for~~ other than to the ~~avoidance of doubt,~~ 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 ~~revolving credit facility~~ Permitted Refinancings thereof (~~including the Revolving Credit Facility~~or successive Permitted Refinancings)) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such~~ 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 ~~New~~ Incremental ~~Notes~~ Equivalent Debt issued pursuant to Section 2.15: , (A) the ~~Borrowers~~ 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 ~~Borrowers~~ Borrower shall be deemed to have used the Ratio-Based Incremental Facility (to the extent ~~compliant therewith~~permitted by the pro forma calculation of the Consolidated First Lien Net Leverage Ratio) prior to utilization of the Cash-Capped ~~Incremental Facility and the Prepayment-Based~~ Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent ~~compliant therewith~~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 Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ 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/or~~ and then calculating the incurrence under the Cash-Capped Incremental ~~Facility,~~ Facility and (C) the ~~Borrowers~~ Borrower may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped ~~Incremental Facility or the Prepayment-Based~~ Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the ~~Borrowers~~ 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 ~~or the Prepayment-Based Incremental Facility, as applicable,~~ by the amount of such redesignated Indebtedness)~~; provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end~~ . The Borrower may designate any Incremental Arranger of any ~~fiscal quarter,~~ New Loan Commitments with such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability titles under the ~~Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds~~New Loan Commitments as Borrower may deem appropriate. (b) Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The ~~Borrowers~~ 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,~~ Agent and 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~~ consent shall not be unreasonably ~~withheld, conditioned~~ 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 ~~Borrowers~~ Borrower must provide to the Administrative Agent ~~(x)~~ reasonable prior written notice thereof and the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestCommitments. (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 ~~Borrowers~~ 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 ~~Borrowers~~ Borrower and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect~~ herein pursuant to ~~any increase in the Applicable Rate relating to any existing Term~~ an Incremental Facility ~~to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term 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~~ 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, (i) no Event of Default (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist after giving effect to such increase; (ii) ) (A) in the case of any increase of the Revolving Tranche, (1) the 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) ~~other than with respect to any Extendable Bridge Loans,~~ the final maturity shall be no earlier than the Maturity Date applicable to the Revolving Credit Facility and (2) no amortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required, (C) in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans or Specified Refinancing Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the longest remaining Weighted Average Life to Maturity of, any other outstanding Term Loans, New Term Loans or Specified Refinancing Term Loans, as applicable; provided, that Extendable Bridge Loans/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, the conditions precedent to each such increase or New Loan Commitment shall be agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrower. (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations ~~represented by such Revolving Commitment Increase Lender~~ will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase Lender~~Credit ▇▇▇▇▇▇’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o

Appears in 1 contract

Sources: Credit Agreement (Allison Transmission Holdings Inc)

Incremental Facilities. (ai) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (such Person (who may be (i) ~~may be~~ the Administrative Agent, if it so ~~agrees,~~ agrees or (ii) any other Person appointed by the ~~Parent Borrower~~Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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) the greater of (A) $~~100,000,000~~ 130,000,000 and (B) 75% of Four Quarter Consolidated ~~EBITDA for~~ EBITDA, minus the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ amount incurred prior to the date of incurrence thereof under the Second Lien Cash-Capped Incremental Amount (and ~~after giving effect to any acquisition consummated concurrently therewith on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent~~ not reclassified in accordance with the ~~definition~~ provisions of ~~“Consolidated EBITDA” and Section 1.10~~the Second Lien Credit Agreement) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of ~~(1)~~ pari passu Term Loans (including, for the avoidance of doubt, any New Term Loans that are pari passu in right of payment and security with the Initial Term Loans) made pursuant to Section 2.05(a) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (~~B) all repurchases and/or cancellations of ~~(1)~~ pari passu Term Loans (including, for the avoidance of doubt, any New Term Loans) made pursuant to the terms hereof (in an amount equal to the face amount of the principal amount repurchased and/or cancelled) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (~~ii~~) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii~~) voluntary prepayments of Revolving Credit Loans (including, for the avoidance of doubt, any New Revolving 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such sum, at any such ~~time~~time and subject to Section 1.02(i), the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in ~~an Alternative Currency~~a foreign currency, the ~~Alternative Currency Equivalent of~~ equivalent principal amount thereof then outstanding in such ~~amount~~foreign currency, converted to Dollars in accordance with Section 1.08, 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~~ Equivalent Debt incurred pursuant to Section 2.15: : (A) At the ~~Borrowers~~ Borrower’s option, 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 Borrowers shall be deemed to have used~~ the Ratio-Based Incremental Facility (to the extent compliant therewith) ), prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility, and the Borrower shall be deemed to have used the Prepayment-Based Incremental Facility prior to utilization of the Cash-Capped Incremental ~~Facility and the Prepayment-Based Incremental~~ Facility, , (B) New Loan Commitments pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by or series of related transactions by, at the Borrower’s option, first calculating the incurrence under the ~~Ratio-~~ Ratio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility or any amounts substantially concurrently incurred under Section 7.01 (other than any Ratio Debt or Ratio Acquisitions Debt incurred pursuant to Section 7.01) and then calculating the incurrence under the Prepayment Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash Capped Incremental Facility) and then calculating the incurrence under the ~~Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the~~ Cash-Capped Incremental Facility~~) and/or the incurrence under the Cash-Capped Incremental Facility,~~ , (C) ~~the Borrowers may redesignate~~ all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility ~~as having been~~ shall automatically cease to be deemed incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility and shall instead be deemed incurred under the Ratio-Based Incremental Facility ~~so long as, at~~ from and after the ~~time of such redesignation,~~ first date on which the ~~Borrowers~~ Borrower would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such 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 or and/or the Prepayment-Based Incremental Facility, as applicable, by all or such portion, as applicable, of the aggregate principal amount of such ~~redesignated~~ Indebtedness)~~; provided~~, ~~that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and~~ and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash ~~proceeds~~proceeds incurred pursuant to this Section 2.14 and/or Incremental Equivalent Debt being incurred at such test date in calculating such Consolidated First Lien Net Leverage Ratio, Consolidated Senior Secured Net Leverage Ratio or Consolidated Total Net Leverage Ratio shall be excluded for purposes of calculating Adjusted Cash or Cash Equivalents. The Borrower may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as the Borrower may deem appropriate. (bii) For the avoidance of doubt, the Borrower will not be obligated to approach any Lender to participate in any New Loan Commitments. Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The ~~Borrowers~~ 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,~~ Agent and 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~~ consent shall not be unreasonably withheld, ~~conditioned~~ delayed or ~~delayed~~conditioned) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as 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 ~~Borrowers~~ Borrower must provide to the Administrative Agent ~~(x)~~ the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestCommitments. (ciii) 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~~ 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 ~~Borrowers~~ Borrower and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for~~ herein pursuant to the ~~avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate~~ documentation 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~~ or New Revolving Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the ~~Borrowers~~ 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. (div) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist immediately 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) ~~other than with respect to any Extendable Bridge Loans,~~ the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase applicable to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment Facility and (y2) ~~if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on~~ no amortization or mandatory commitment reduction prior to the ~~Increase Effective~~ Maturity Date ~~be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ applicable to 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 Facility 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~~required, ~~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~~C) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans, Specified Refinancing Term Loans or Extended Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such ~~junior secured~~ 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 ~~Revolving Facility~~ Term Loans, Specified Refinancing Term Loans or Extended Term Loans, as applicable; provided, that Extendable Bridge Loans/Interim Debt may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and, with respect to Extendable Bridge Loans/Interim Debt, the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, and (D) in the case of any New Term Facility, other than in the case of Extendable Bridge Loans/Interim Debt, such New ~~Revolving~~ Term Facility or 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 ~~subject~~ no shorter than that of any existing Term Loan Tranche; (iii) except with respect to ~~intercreditor arrangements that are~~ the All-in Yield and as set forth in subclause (D) above with respect to final maturity and Weighted Average Life to Maturity, any such New Term Facility or New Revolving Facility shall have terms reasonably satisfactory to the Incremental ~~Arranger and, if such~~ Arranger; and (iv) to the extent reasonably requested by the Incremental Arranger ~~is not~~ and expressly set forth in the ~~Administrative Agent, the Administrative Agent), (ii) the~~ documentation relating to such New Term Facility or New Revolving Facility, the Incremental Arranger shall have received legal opinions, resolutions, officers’ certificates, reaffirmation agreements and/or subsequent ranking agreements or amendment agreements to, confirmations of and/or lower ranking Collateral Documents, as applicable, ~~shall~~consistent with those delivered on the Closing Date under Section 4.01 or delivered from time to time pursuant to Section 6.12, ~~for purposes~~ Section 6.14 and/or Section 6.16 with respect to Holdings, the Borrower and each material Subsidiary Guarantor (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of ~~prepayments~~opinion). Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be ~~treated substantially~~ solely those agreed to by the ~~same~~ Lenders providing such increase or New Loan Commitment, as applicable, and the Borrower. Notwithstanding the foregoing, (~~and in~~ x) to the extent any ~~event no more favorably than) the~~ terms of any Term Commitment Increase, Revolving Credit Commitment Increase, New Term Facility or New Revolving Facility are more favorable to the existing Lenders than comparable terms existing in the Loan Documents, such terms (if favorable to the existing Lenders) may be, in consultation with the Incremental Arranger, 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, the Borrower may, but shall not be required to, increase the Applicable Rate or amortization payments relating to any existing Term Facility to bring such Applicable Rate in line with the relevant Term Commitment Increase or New Term Facility to achieve fungibility with such existing Term Facility), (y) the terms of any New Revolving Facility shall be substantially identical to the Revolving Credit Facility, ~~as the case may be, unless the Borrowers otherwise elect~~ except for (~~but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii~~i) ~~with respect to any Dollar-denominated, floating rate New Term Facility~~ terms that ~~is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months~~ are applicable only after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the then Latest Maturity Date of the Revolving Credit Facility or (ii) such terms as may be included subject solely as to administrative matters and subject to the Administrative Agent’s consent (such consent not to be unreasonably withheld, delayed or conditioned) and (z) the terms of any New Term Facility or New Revolving Facility may be incorporated if otherwise reasonably satisfactory to the Borrower, the Incremental Arranger and the Administrative Agent. To the extent the Borrower establishes a New Revolving Facility, then othe Administrative Agent and the Borrower shall be permitted to amend this Agreement to require borrowings and repayments on a pro rata basis among Revolving Tranches (except for (A) payments of interest and fees at different rates on the Revolving Credit Commitments (and related outstandings), (B) repayments requi

Appears in 1 contract

Sources: First Lien Credit Agreement (ZoomInfo Technologies Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to the Person appointed by the Borrower to arrange an incremental Facility (such Person (who may be (i) ~~may be~~ the Administrative ~~Agent, if it so agrees,~~ Agent or (ii) any other Person appointed by the ~~Parent~~ Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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) the greater of (A) $~~100,000,000~~ 55,000,000 and (B) 100% of Four Quarter Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to (~~i)(A~~i) (A) all voluntary prepayments of ~~(1)~~ Term Loans made pursuant to Section 2.05(a) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (~~B) all repurchases and/or cancellations of ~~(1)~~ Term Loans made pursuant to the terms hereof and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (~~ii~~) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii~~) voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) (including for the avoidance of doubt New Revolving Loans), 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~~ long-term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in to the ~~case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ extent secured (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in ~~an Alternative Currency~~a foreign currency, the ~~Alternative Currency Equivalent~~ equivalent of such ~~amount~~amount in such currency, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to this Section 2.14 and New Incremental Notes issued pursuant to Section 2.15: : (A) At the ~~Borrowers~~ Borrower’s option, 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 Borrowers shall be deemed to have used~~ the Ratio-Based Incremental Facility (to the extent compliant therewith) ), prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility, and the Borrower shall be deemed to have used the Prepayment-Based Incremental Facility prior to utilization of the Cash-Capped Incremental ~~Facility and the Prepayment-Based Incremental~~ Facility, , (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction or series of related transactions by, at the Borrower’s option, by first calculating the incurrence under the Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the PrepaymentRatio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility, the Prepayment-Based Incremental Facility or any amounts substantially concurrently incurred under Section 7.01 (other than any Ratio Debt incurred pursuant to Section 7.01 (including, without limitation, pursuant to clause (o) ~~and/or~~ thereof)) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash-Capped Incremental Facility) and then calculating the incurrence under the Cash-Capped Incremental Facility, , (C) ~~the Borrowers may redesignate all or any~~ Any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility shall be automatically divided (if applicable) and redesignated as having been incurred under the Ratio-Based Incremental Facility ~~so long as, at~~ in the ~~time of such redesignation~~event that subsequent to the original incurrence, the ~~Borrowers~~ 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 or and/or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness)~~; provided~~, ~~that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and~~ and (D) solely for the purpose of calculating ~~the Consolidated First Lien Net Leverage Ratio,~~ the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash ~~proceeds~~proceeds incurred pursuant to this Section 2.14 and/or New Incremental Notes being incurred at such test date in calculating such Consolidated Senior Secured Net Leverage Ratio or Consolidated Total Net Leverage Ratio shall be excluded. The Borrower may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as the Borrower may deem appropriate. (b) For the avoidance of doubt, the Borrower will not be obligated to approach any Lender to participate in any New Loan Commitments. Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The ~~Borrowers~~ 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,~~ Agent and 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~~ consent shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the ~~Borrowers~~ Borrower must provide to the Administrative Agent ~~(x)~~ the documentation providing for such New Loan Commitments and ~~(y) a~~ prior written notice of ~~the identity of any new Lender; provided further, that~~ such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestjoinder documentation. (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~~ 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 ~~Borrowers~~ Borrower and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in a writing (which may be executed and delivered by the ~~Borrowers~~ 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, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition ~~Investment, Restricted Payment~~ or ~~other transaction permitted pursuant to this Agreement as described in Section 1.02(i)~~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) ~~other than with respect to any Extendable Bridge Loans,~~ the final maturity shall be no earlier than the Maturity Date applicable to the Revolving Credit Facility and (2) no amortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required, (C) in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans, Specified Refinancing Term Loans or Extended Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the longest remaining Weighted Average Life to Maturity of, any other outstanding Term Loans, New Term Loans, Specified Refinancing Term Loans or Extended Term Loans, as applicable; provided, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and, with respect to Extendable Bridge Loans, the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, and (D) in the case of any New Term Facility, other than in the case of Extendable Bridge 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, any such New Term Facility or New Revolving Facility shall have terms reasonably satisfactory to the Incremental Arranger; provided, that (x) to the extent such terms (excluding pricing, and optional prepayment or redemption terms) are more favorable to the existing Lenders than comparable terms existing in the Loan Documents, such terms shall be incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) by an amendment to this Agreement (which may be accomplished without further Lender voting requirements) (provided that, for the avoidance of doubt, at the option of the Borrower, the Borrower may, but shall not be required to, increase the Applicable Rate or amount of amortization relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility) and (y) otherwise, may be incorporated if reasonably satisfactory to the Borrower, the Incremental Arranger and the Administrative Agent; and (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 Borrower and each material Subsidiary Guarantor that is organized in a jurisdiction for which counsel to the Administrative Agent advises that such deliveries are reasonably necessary to preserve the Collateral in such jurisdiction (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion). Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrower. (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations ~~represented by such Revolving Commitment Increase Lender~~ will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oBorrowi

Appears in 1 contract

Sources: Credit Agreement (PurposeBuilt Brands, Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, ~~upon~~ by notice ~~by the Parent Borrower~~ to the ~~Person appointed by the Borrower to arrange an incremental Facility (such Person~~ Administrative Agent (who ~~(i) may be~~ shall promptly notify the ~~Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”~~applicable Lenders) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, ~~request~~ request (i) an increase in the Commitments under any Revolving ~~Tranche~~ Facility (which shall be on the same terms as, and become part of, the Revolving ~~Tranche~~ Facility 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 ~~revolving credit~~ term loan 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice 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~~ Increase and the Term Commitment Increase, the “New Loan Commitments”) in by an amount not to exceed ~~the sum of~~ (x) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Dollar Capped Incremental ~~Facility”),~~ Amount plus (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loansas, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of ~~any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ this clause (~~the “Prepayment-Based Incremental Facility”~~y) (subject to the Limited Condition Acquisition Proviso in connection with any Permitted Acquisition or permitted Investment that constitutes an acquisition (other than an intercompany Investment)), the Maximum First Lien Leverage Requirement is satisfied (such ~~sum~~amount, at any such time, the “Incremental Amount”); provided that (i) no Event of Default would exist after giving effect to any such request and (ii) any such request for an increase shall be in a minimum amount of the lesser of (x) a Dollar Amount of $5,000,000 ~~or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that ~~for purposes of~~ any New Loan Commitments established pursuant to this Section 2.14 and New Incremental Notes issued pursuant to Section ~~2.15: (A)~~ 2.15 will reduce the ~~Borrowers~~ Incremental Amount, provided that such amounts 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 Borrowers shall be deemed to have used~~ count towards the Ratio-Based Incremental Facility prior to reducing the maximum amount under the Dollar Capped Incremental Amount (to the extent ~~compliant therewith~~permitted by the First Lien Net Leverage Ratio (and, if applicable, the Total Net Leverage Ratio) calculated on a Pro Forma Basis required prior to ~~utilization~~ the incurrence of ~~the Cash-Capped Incremental Facility and the Prepayment~~such Ratio-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at . At the time of sending such ~~redesignation~~notice to the applicable Lenders, the ~~Borrowers would be permitted~~ Borrower (in consultation with the Administrative Agent) shall specify the time period within which each applicable Lender is requested to ~~incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility~~ respond (which, ~~for~~ unless the ~~avoidance of doubt~~Administrative Agent otherwise agrees, shall ~~have~~ in no event be less than ten Business Days from the ~~effect~~ date of ~~increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility, as applicable, by the amount~~ delivery of such ~~redesignated Indebtedness~~notice); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds. (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 ~~to participate in any New Loan Commitments~~ may elect or decline, in its sole discretion, to ~~participate in~~ 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 ~~Borrowers~~ Administrative Agent shall notify the Borrower 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 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, the Swingline Lender and 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,~~ and/or Commitments to such Eligible Assignee, which ~~consents~~ consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed) to become Lenders pursuant to a joinder agreement to this ~~Agreement. Neither~~ Agreement in form and substance reasonably satisfactory to the Administrative ~~Agent nor the Collateral Agent~~ Agent; provided that (~~in their respective capacities as such~~i) no Affiliate Lender may provide any Revolving Credit Commitment Increase and (ii) any Term Commitment Increase or New Term Loan provided by an Affiliate Lender shall be ~~required~~ subject to ~~execute, accept or acknowledge~~ the restrictions on Term Loans purchased by Affiliate Lenders set forth in Section 10.07 (and any ~~joinder agreement~~ Term Loans to be made by an Affiliate Lender (other than a Debt Fund Affiliate) 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 Borrowers must provide~~ subject to the ~~Administrative Agent (x~~limitation set forth in Section 10.07(i)(iii) ~~the documentation providing for~~ as if such ~~New~~ Term Loan ~~Commitments and (y) a notice~~ were purchased as of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestIncrease Effective Date). (c) If (i) a Revolving ~~Tranche~~ Facility 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 ~~Borrowers~~ Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such ~~increase,~~ increase or New Term ~~Facility or New Revolving~~ Facility among the applicable Lenders. The ~~Incremental Arranger~~ Administrative Agent shall promptly notify the applicable Lenders of the final allocation of such ~~increase,~~ increase or 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~~ Facility 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~~ Borrower and the ~~Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)~~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~~ Facility and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date~~, in the case of an increase to an existing Term Loan Tranche~~, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in a writing (which may be executed and delivered by the ~~Borrowers~~ Borrower and the ~~Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)~~Administrative Agent) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Term 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~~ As conditions precedent to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of a New Term ~~Facility or New Revolving~~ Facility pursuant to this Section 2.14, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date signed by a Responsible Officer of the Borrower, certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase, and certifying that the conditions precedent set forth in the following subclauses have been satisfied (which certificate shall, if applicable, include supporting calculations demonstrating compliance with the Maximum First Lien Leverage Requirement): (i) except as set forth in the proviso to the last sentence of this clause (d), no ~~Event~~ Default shall have occurred or be continuing as of ~~Default~~ the Increase Effective Date or would result therefrom, and the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects (~~subject~~ and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date, and except that for purposes of this Section 2.14, the representations and warranties contained in Sections 5.05(a) shall be deemed to refer to the most recent financial statements furnished pursuant to Section ~~1.02(i~~6.01(a), prior to such Increase Effective Date; (ii) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii)the case of: (A) ~~in the case of~~ any increase of any Revolving Facility, the ~~Revolving Tranche,~~ terms (1including as to maturity) ~~the final maturity~~ shall be the same as the ~~Maturity Date applicable to~~ Revolving Facility being increased and 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) any increase of a Term Loan Tranche, (B1) the final maturity of the Term Loans increased pursuant to this Section 2.14 shall be no earlier than the final maturity date of the Tranche being increased and in any event no earlier than the Original Term Maturity Date, (2) 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, (3) such Term Loans shall be denominated in Dollars or in Euros as agreed by the Borrower and the applicable Lenders, and (4) the terms and documentation applicable to the Term Loan Facility shall apply; and (C) in the case of any New ~~Revolving~~ Term Facility, (1) ~~other than with respect to any Extendable Bridge Loans, the~~ such New Term Facility shall have a final maturity ~~shall be~~ no earlier than the then Latest Maturity Date of any Term Loan Tranche, (2) the Weighted Average Life to Maturity of such New Term Facility shall be no shorter than that of any existing Term Loan Tranche, and (3) except with respect to all-in yield and as set forth in subclauses (C)(1) and (C)(2) 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; and (iii) 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 and/or Section 6.16 with respect to Parent, 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 Administrative Agent). Subject to the foregoing, the conditions precedent to each Term Commitment Increase or New Term Facility shall be as agreed to by the Lenders providing such Term Commitment Increase or New Term Facility, as applicable, the Administrative Agent and the Borrower(s); provided, that in connection with the incurrence of any such Term Commitment Increase or New Term Loans, if the proceeds of such Term Commitment Increase or New Term Loans are, substantially concurrently with the receipt thereof, to be used, in whole or in part, by the Borrower or any other Loan Party to finance, in whole or in part, a Permitted Acquisition, then (A) to the extent agreed to by the Lenders providing such Term Commitment Increase or New Term Loans, 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 the Borrower or any Affiliate of the Borrower has the right (determined without regard to any notice provision) to terminate the obligations of the Borrower 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) no Event of Default under Sections 8.01(a), (f) and (g) then exists or would exist after giving effect to such incurrence (“Permitted Acquisition Provisions”). (e) On the Increase Effective Date with respect to ~~an increase to an existing~~ a Revolving ~~Tranche~~Facility, (x) each Revolving Credit Lender in respect of such Revolving Facility 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 the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C ~~Obligations~~ Advances under the applicable Revolving Facility and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in L/C ~~Obligations represented~~ Advances and (ii) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase ~~Lender~~ Lender) under the applicable Revolving Facility will equal the percentage of the aggregate Revolving Credit Commitments in respect of such Revolving Facility of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment in respect of such Revolving Facility and (y) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Revolving Facility outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans under the applicable Revolving Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any 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~~that each Lender under such Term Loan Tranche will participate proportionately in each then outstanding Borrowing of Term Loans under that Term Loan Tranche. (f) (i) Any ~~New Revolving Facility and~~ New Term Facility shall rank pari passu in right of ~~payment with~~ payment, have the ~~other Facilities, not be Guaranteed by any Person that is not a Borrower or Guarantor under each of the other Facilities~~same guarantees as, and be ~~unsecured or~~ secured ~~either~~ on a ~~pari passu~~ first lien “equal and ratable” basis with the other Facilities ~~or on a “junior” basis to the other Facilities, in each case~~ over the same ~~(or less)~~ Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent)Facilities, (ii) the New Term Facility ~~or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and~~ shall share ratably in any ~~event no more favorably than)~~ prepayments of the Term ~~Facility~~ Loans pursuant to Section 2.05 (or ~~Revolving Credit Facility, as~~ otherwise provide for more favorable prepayment treatment for the ~~case may be, unless the Borrowers otherwise elect (but in any event no more favorably~~ then outstanding Term Loan Tranches than the ~~existing~~ Term Loans ~~or Revolving Credit Loans, as applicable),~~ under such New Term Facility) and (iii) the all-in yield (whether in the form of interest rate margins, original issue discount, upfront fees, or Eurocurrency Rate or Base Rate floors (but not arrangement or underwriting fees paid to arrangers for their own account and not shared with ~~respect to any Dollar-denominated, floating rate~~ the Lenders providing such New Term ~~Facility that is pari passu in right~~ Facility) and equating original issue discount and upfront fees to interest rate for purposes of ~~payments and secured on~~ this calculation, assuming a ~~pari passu basis with InitialTranche B Term Loans and is incurred on or prior~~ four-year life to ~~the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers~~ maturity) applicable to such New Term Facility shall be determined by the ~~Borrowers~~ Borrower and the Lenders providing such New Term Facility and in the case of any New Term Facility incurred or made available prior to the first anniversary of the Closing Date, the all-in yield shall not be more than 75 50 basis points higher than the ~~corresponding All~~all-in ~~Yield payable by~~ yield (giving effect to interest rate margins, original issue discount, upfront fees and Eurocurrency Rate and Base Rate floors, in the ~~Borrowers for~~ case of original issue discount and upfront fees calculated as provided in the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then opreceding parent

Appears in 1 contract

Sources: Credit Agreement (Medpace Holdings, Inc.)

Incremental Facilities. (a) The Borrowers may, from time to time after the Closing Date, upon notice by the ~~Parent Borrower~~ Borrowers to the Administrative Agent and the Person appointed by the ~~Borrower~~ Borrowers to arrange an incremental ~~Facility~~ facility (such Person (who may be (i) ~~may be~~ the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the ~~Parent Borrower),~~ Borrowers the “Incremental Arranger”) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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~~ clauses (c) and (d) below or, subject to the terms of clause (f)(iii) below, with respect to ~~amortization~~any fees or original issue discount payable to the lenders providing such increase)) (each, a “Term Commitment Increase”), (iii) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (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 (ivii) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the ~~Parent Borrower identifies~~ Borrowers identify in such notice (provided that the Administrative Agent has consented to such currencies (such consent to not be unreasonably withheld)) (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~~ and, together with ~~the Revolving Credit Commitment Increase, the New Revolving Commitments and~~ the Term Commitment Increase, the “New Loan Commitments”) in by an amount not to exceed the sum of (x) ~~the greater of (A)~~ $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) 20,000,000 (the “~~Cash-Capped Incremental Facility~~Free and Clear Amount”)) , (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to (~~i)(A~~i) all voluntary prepayments of ~~(1)~~ Term Loans made pursuant to Section 2.05(a) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B~~ii) all voluntary repurchases of ~~(1)~~ Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) in an amount equal 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the principal amount of the ~~actual cash expenditure~~ Term Loans repurchased (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) a Dollar Amount equal to $~~5,000,000 or,~~ 10,000,000 (in the case of ~~any~~ Term Commitment Increases or New ~~Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ Term Facilities) 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~~ Equivalent Debt incurred pursuant to Section 2.15: , (A) unless the Borrowers elect otherwise, 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 Borrowers shall be deemed to have used the~~ Ratio-Based Incremental Facility (to the extent ~~compliant therewith~~permitted by the pro forma calculation of the applicable ratio) prior to utilization of ~~the Cash-Capped Incremental Facility and~~ the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental ~~Facility (to the extent compliant therewith)~~Facility, ~~the Cash-Capped Incremental Facility and~~ and/or the Prepayment-Based Incremental ~~Facility,~~ Facility and proceeds from any such incurrence under the Ratio-Based Incremental Facility, and/or the Prepayment-Based Incremental Facility may be utilized in a single transaction by first calculating the incurrence under the ~~Ratio-~~ Ratio-Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ utilized ~~pursuant to the Cash-Capped Incremental Facility or~~ under the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility and (~~without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility~~C)(i) ~~and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate~~ all or any portion of Indebtedness originally designated as incurred under the ~~Cash~~Prepayment-~~Capped~~ Based Incremental Facility or shall automatically cease to be deemed incurred under the Prepayment-Based Incremental Facility ~~as having been~~ and shall instead be deemed incurred under the Ratio-Based Incremental Facility ~~so long as, at~~ from and after the ~~time of such redesignation,~~ first date on which the Borrowers would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such 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 or the~~ Prepayment-Based Incremental Facility, as applicable, by the ~~amount~~ Dollar Amount of such redesignated Indebtedness~~); provided, that such Indebtedness shall be automatically redesignated to~~ ) and (ii) the ~~extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C)~~Swedish Borrower may otherwise classify, and ~~(D) solely for the purpose~~ may later reclassify, all or any portion of ~~calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio~~ Indebtedness as incurred as a Prepayment-Based Incremental Facility or ~~the Consolidated Total Net Leverage Ratio to determine the availability under the~~ Ratio-Based Incremental Facility on the date of incurrence IF "1" = "1" "#4875-2924-7575v15" "" #4875-2924-7575v15 AMERICAS 120585256 and thereafter to the extent otherwise permitted on the date of such classification (or the date of any such reclassification); provided, further, that the Free and Clear Amount shall be reduced to zero at all times after the ~~time~~ date falling 120 days after the Closing Date.. The Swedish Borrower may designate any Incremental Arranger of ~~incurrence,~~ any ~~cash proceeds~~New Loan Commitments with such titles under the New Loan Commitments as the Borrowers may deem appropriate. (b) Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The Borrowers may also invite additional Eligible Assignees reasonably satisfactory to the Incremental Arranger ~~and, solely in connection with a Revolving Credit Commitment Increase or New Revolving Facility, with~~ and the Administrative Agent (but only to the extent that the consent of the Administrative ~~Agent, each L/C Issuer (in each case, to the extent the consent of any of the foregoing~~ Agent would be required Section 10.07(b) for an assignment to ~~assign Revolving Credit Loans or Term Loans, as applicable, to~~ any such additional Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request). (c) If (i) ~~a Revolving Tranche or~~ a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term 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,~~ increase or New Term ~~Facility or New Revolving~~ Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility ~~or New Revolving Facility~~ and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or ~~Revolving Tranche or~~ (ii) any addition of a New Term ~~Facility or New Revolving~~ Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or ~~New Revolving Facility or~~ to effectuate the increases to the Term Loan Tranche ~~or Revolving Tranche~~ and to reflect any technical changes ~~necessary~~ necessary, advisable or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for~~ herein pursuant to the ~~avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate~~ documentation relating to ~~any existing~~ such New Term ~~Facility to bring such Applicable Rate in line with the~~ Facility. Any Term Commitment Increase or New Term Facility ~~to achieve fungibility with such existing Term Facility~~shall be documented under this 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 writing (which may be executed and delivered by the ~~Borrowers~~ Borrowers, the Administrative Agent and the Incremental Arranger (and the Lenders hereby authorize the Administrative Agent and any such Incremental Arranger to execute and deliver any such documentation)) to (x) add any call protection applicable to any existing Term Loan Tranche being increased and/or (y) 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; provided that in no event shall the amount of amortization paid in respect of the Term Loan Tranche outstanding prior to the Increase Effective Date be reduced. (d) With respect to any ~~Revolving Credit Commitment Increase,~~ Term Commitment Increase or addition of New Term ~~Facility or New Revolving~~ Facility pursuant to this Section 2.14, (i) no Event of Default ~~(subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would~~ shall exist immediately after giving effect to such increase; (ii) ) (A) in the case of any increase of ~~the Revolving~~ a Term Loan Tranche, ~~(1)~~ 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 unless the Term Lenders are also offered by the Borrowers the same as amortization amounts for the corresponding year (provided that each Term Lender will be deemed to have accepted such offer unless such Term Lender notifies the Administrative Agent that it has rejected such offer by 11 a.m. five (5) Business Days (or such longer period which the Swedish Borrower agrees) after the date of such offer; provided, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date ~~applicable~~ of all then outstanding Term Loans and with respect to Extendable Bridge Loans, the ~~Revolving Credit Facility, (2) no amortization or mandatory commitment reduction prior~~ Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity ~~Date applicable to the Revolving Credit Facility shall be required~~ of any then outstanding Term Loans and ~~(3) the terms and documentation applicable to the Revolving Credit Facility shall apply,~~ (B) in the case of any New ~~Revolving~~ Term Facility, ~~(1)~~ other than ~~with respect to any~~ in the case of Extendable Bridge Loans, ~~the~~ such New Term Facility shall have a final maturity ~~shall be~~ IF "1" = "1" "#4875-2924-7575v15" "" #4875-2924-7575v15 AMERICAS 120585256 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 unless the Term Lenders are also offered by the Borrowers the same amortization amounts for the corresponding year (provided that each Term Lender will be deemed to have accepted such offer unless such Term Lender notifies the Administrative Agent that it has rejected such offer by 11 a.m. five (5) Business Days (or such longer period which the Swedish Borrower agrees) after the date of such offer; provided that, other than in the case of Extendable Bridge Loans, in no event shall any New Term Facility at the time of establishment thereof mature prior to the Maturity Date, (iii) after giving Pro Forma Effect to such Incremental Amount, the Maximum Incremental Amount Condition shall be satisfied and (iv) except as set forth in clause (f)(iii) below with respect to All-In Yield and with respect to final maturity and Weighted Average Life to Maturity, any such New Term Facility shall have the same terms as any Term Facility; provided, that notwithstanding the foregoing, such terms may differ from the terms of any Term Facility so long as agreed between the Borrowers and the lenders providing such New Term Facility and so long as such different terms (w) to the extent more favorable to the existing Lenders than comparable terms existing in the Loan Documents, as reasonably determined by the Swedish Borrower in consultation with the Administrative Agent, are 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 Lender consent requirements, including, for the avoidance of doubt, at the option of the Swedish Borrower, any increase in the Applicable Rate or the amount of any amortization payments relating to any existing Term Facility to bring such Applicable Rate or amortization payment in line with the New Term Facility to achieve fungibility with such existing Term Facility, (x) are applicable only to periods after the Latest Maturity Date of the Term Facilities existing at the time of the incurrence of such indebtedness or (y) are reasonably satisfactory to the Borrowers, the Administrative Agent and the Required Lenders, provided that to the extent that any Incremental Facility has the benefit of a financial covenant that is tested prior to the Latest Maturity Date of the Term Facilities existing at the time of the incurrence of such indebtedness, such financial covenant shall be incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders without further Lender consent requirements. Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be solely those agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrowers. Notwithstanding the foregoing, loans in respect of any Term Commitment Increase or New Term Commitment that are secured on a pari passu basis with the Initial Term Loans shall be incurred via a joinder to this Agreement, and shall feature the exact same terms as are applicable to the Initial Term Loans, subject to Section 2.14(f) below. (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so ~~that~~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~~ Term Facilities, not be Guaranteed by any Person that is not a Borrower or Guarantor under ~~each of~~ the ~~other~~ Term Facilities, and be ~~unsecured or~~ secured ~~either~~ on a ~~pari passu~~ first lien “equal and ratable” basis with the ~~other~~ Term Facilities ~~or on a “junior” basis to the other Facilities, in each case~~ over the same (or less) Collateral that secures the ~~Facilities (and in the case of any such junior secured New Revolving Facility or New~~ Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent)Facilities, (ii) ~~the~~ any New Term Facility ~~or New Revolving Facility, as applicable,~~ shall, for purposes of prepayments, be treated ~~substantially~~ exactly the same as (and in any event no more favorably than) ), and shall, subject to this Section 2.14(f), be on the exact same terms as, any Term Facility ~~or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable),~~ and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the ~~Borrowers~~ Swedish Borrower and the Lenders providing such New Term ~~Facility~~ Facility, and shall not be more than 75 50 basis points higher than the corresponding All-in Yield payable by the Borrowers for the ~~InitialTranche B~~ applicable Tranche(s) of existing Term Loans, unless the All-in Yield with respect to ~~the InitialTranche B~~ such applicable Tranche(s) of such then-existing Term Loans is are increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term ~~Facility~~ IF "1" = "1" "#4875-2924-7575v15" "" #4875-2924-7575v15 AMERICAS 120585256 Facility, and the corresponding All-in Yield on ~~the InitialTranche B~~ such applicable Tranche(s) of such then existing Term Loans is equal to 75 50 basis ~~points;~~ points (provided ~~that this clause (iii) shall not apply~~ that, to ~~any New Term Facility that (A)~~ the extent such increase in All-in Yield is ~~in an aggregate principal amount (together~~ the result of a higher SOFR or Base Rate floor with ~~any other~~ respect to such New Term Facility, as applicable, the increase in All-in Yield for the applicable Tranche of such then existing Term Loans shall be effected solely through an increase in such “floor” (or an implementation thereof, as applicable) ~~equal~~ in respect of such applicable Tranche(s) of such then existing Term Loans to ~~or less than $100,000,000, (B) has a final maturity later than one year after~~ the ~~Latest Maturity Date~~ extent of the ~~then o~~All-in Yield differential). (g) The Lenders hereby authorize the Administrative Agent and the Incremental Arranger (and the Lenders hereby authorize the Administrative Agent and the Incremental Arranger to execute and deliver such amendments) to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary, desirable or appropriate in order to secure any Indebtedness under this Section 2.14 with the Collateral and/or to make such technical amendments as may be necessary, desirable or appropriate in the reasonable opinion of the Administrative Agent and Incremental Arranger and the Swedish Borrower in connection with the incurrence of such Indebtedness, in each case on terms consistent with this Section 2.14. If the Incremental Arranger is not the Administrative Agent, the actions authorized to be taken by the Incremental Arranger herein shall be done with the consent of the Administrative Agent (not to be unreasonably withheld) and, with respect to the preparation of any documentation necessary or appropriate to carry out the provisions

Appears in 1 contract

Sources: Credit Agreement (Oatly Group AB)

Incremental Facilities. (a) ~~The Borrowers may~~Subject to the terms and conditions set forth herein and so long as no Default or Event of Default has occurred and is continuing, the Borrower shall have the right, at any time and from time to time ~~after~~ prior to the ~~Closing~~ Maturity Date, ~~upon notice by~~ to incur additional Indebtedness under this Credit Agreement in the ~~Parent Borrower to the Person appointed by the Borrower to arrange an incremental Facility (such Person (who~~ form of (i) ~~may be~~ one or more increases to the ~~Administrative Agent, if it so agrees,~~ Revolving Committed Amount (each an “Increased Revolver Commitment”) which shall constitute one and the same Facility as the existing Revolving Commitments or (ii) ~~any other Person appointed by~~ one or more commitments (each, an “Incremental Facility Commitment”, and together with the ~~Parent Borrower)~~Increased Revolver Commitments, the “Incremental ~~Arranger~~Commitments”) ~~specifying the proposed amount thereof~~ for term loan facilities which shall constitute a new Facility as provided in 2.22(d) below (an “Incremental Facility,” and the ~~proposed currency denomination thereof~~loans thereunder, ~~request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (a~~ “~~Revolving Credit Commitment Increase~~Incremental Loans”), ~~(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~~ up to ~~be increased hereunder (except as otherwise provided in clause (d) below with respect to amortization)) (each,~~ a ~~“Term Commitment Increase”), (iii) the addition~~ maximum aggregate amount of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (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, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Incremental Commitments ~~and the Term Commitment Increase, the “New Loan Commitments”) in an amount~~ not to exceed $400,000,000; provided that, if the ~~sum~~ Collateral Event has occurred, the aggregate amount of all Incremental Commitments shall not exceed at the time any such Incremental Commitments are entered into the greater of (x) ~~the greater of (A)~~ $~~100,000,000~~ 400,000,000 and (By) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (and after giving effect to any acquisition consummated concurrently therewith an amount such that, on a Pro Forma Basis after giving effect to such Incremental Commitments (and ~~all other appropriate pro forma adjustment events consistent~~ assuming such Incremental Commitments are fully drawn and/or funded, as applicable, and applied for the purpose intended) the Consolidated Net Leverage Ratio does not exceed 3.00 to 1.00.1.00; provided, further, that no Incremental Commitments shall be permitted from the Amendment No. 3 Effective Date through September 30, 2021. (b) The following terms and conditions shall apply to each Increased Revolver Commitment: (i) Obligations thereunder shall constitute Credit Party Obligations and will be guaranteed (and secured, to the extent applicable) with the definition of “Consolidated EBITDA” and Section 1.10) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured other Credit Party Obligations on a pari passu basis ~~with~~ and will not be guaranteed by any obligor or secured by any assets that do not guarantee or secure, respectively, the ~~Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans~~Credit Party Obligations, (ii) ~~voluntary prepayments of all~~ each Increased Revolver Commitment shall have the same terms (including interest rate and maturity date but other ~~Indebtedness secured by a Lien that is pari passu~~ than with respect to any upfront fees) as the ~~Liens securing the Obligations and~~ existing Revolving Commitments, (iii) ~~voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a)~~ each Increased Revolver Commitment shall be entitled to the ~~extent accompanied by~~ same voting rights as the existing Revolving Commitments, voting as one class, and shall be entitled to receive a ~~corresponding~~pro rata share of proceeds of prepayments on the same basis as the existing Revolving Loans and shall be considered an increase to the existing Revolving Commitments, ~~permanent reduction in the Revolving Credit Commitments pursuant to Section 2.06(a)~~(iv) each Increased Revolver Commitment shall be obtained from existing Lenders or from other banks, financial institutions or Funds, in each ~~case~~case in accordance with the terms set forth below, ~~to the extent not funded with~~ (v) the proceeds of ~~long term Indebtedness (excluding,~~ all Loans thereunder will be used for the ~~avoidance of doubt~~purposes set forth in Section 3.11, ~~proceeds~~ (vi) the Borrower shall execute a Note in favor of any ~~revolving credit facility~~ new Lender or any existing Lender requesting a Note whose Revolving Commitment is increased, (~~including the Revolving Credit Facility)~~vii) ~~and in the case of any such prepayment or repurchase at a price below par, based~~ on the ~~amount~~ effective date of ~~the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (~~each such ~~sum, at any such time~~increase, the ~~“Incremental Amount”); provided that any~~ conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (viii) each such ~~request for an increase~~ Increased Revolver Commitment shall be in a minimum amount of ~~the lesser of (x)~~ $5,000,000 ~~or,~~ (and $1,000,000 increments in ~~the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount~~excess thereof), and (yix) the ~~entire amount of~~ Administrative Agent shall have received from the Borrower (A) resolutions, legal opinions and other corporate authority documents reasonably requested by the Administrative Agent, substantially the same in form and substance as those delivered on the Closing Date pursuant to Section 4.1 and (B) updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, after giving effect to such Increased Revolver Commitment and any ~~increase that may~~ borrowings thereunder and the application thereof on a Pro Forma Basis, the Credit Parties will be ~~requested under this~~ in compliance with the financial covenants set forth in Section ~~2.14; provided, further,~~ 5.9 (provided that for purposes of this clause (b) the applicable Consolidated Net Leverage Ratio shall be 4.50 to 1.00 for any ~~New Loan~~ fiscal quarter and, if the Collateral Event has occurred, the condition in the proviso set forth in Section 2.22(a)) and no Default or Event of Default shall exist. Any new banks, financial institutions and Funds that become Revolving Lenders that were not previously Lenders hereunder shall enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request. In connection with the closing of any Increased Revolver Commitment, the outstanding Revolving Loans and Participation Interests shall be reallocated by causing such fundings and repayments (which shall not be subject to any processing and/or recordation fees) among the Revolving Lenders (with the Borrower responsible for any costs arising under Section 2.15 resulting from such reallocation and repayments) of Revolving Loans as necessary such that, after giving effect to such Increased Revolver Commitments, each Revolving Lender will hold Revolving Loans and Participation Interests based on its Revolving Commitment Percentage (after giving effect to such Increased Revolver Commitments). (c) The following terms and conditions shall apply to each Incremental Facility: (i) Obligations thereunder shall constitute Credit Party Obligations and will be guaranteed (and secured, to the extent applicable) with the other Credit Party Obligations on a pari passu basis and will not be guaranteed by any obligor or secured by any assets that do not guarantee or secure, respectively, the Credit Party Obligations, (ii) each Incremental Facility shall otherwise have terms (including pricing terms) to be agreed by the Borrower and the Lenders providing the Incremental Commitments ~~established pursuant~~ (the “Incremental Lenders”) subject to ~~this Section 2.14 and New Incremental Notes issued pursuant to Section 2.15~~the following parameters: (A) ~~the Borrowers~~ no Incremental Facility shall ~~be deemed to have used amounts under the Prepayment-Based Incremental Facility, if any,~~ mature prior to ~~utilization of~~ the ~~Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (~~Maturity Date applicable to the ~~extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility~~Revolving Loans, (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~~ mandatory prepayments customary for a term loan (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility (which, which for the avoidance of ~~doubt, shall have~~ doubt may include prepayments with the ~~effect~~ proceeds of ~~increasing the Cash~~non-~~Capped Incremental Facility or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall~~ ordinary course asset sales and “excess cash flow” (to be ~~automatically redesignated~~ defined in a manner satisfactory to the ~~extent that, at~~ Borrower and the ~~end of any fiscal quarter, such redesignation would~~ Administrative Agent)) may be ~~permitted under this clause (C)~~included on then-market terms, and (DC) ~~solely for the purpose~~ all terms 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 any Incremental Facility at not set forth herein, shall be reasonably satisfactory to the ~~time of incurrence~~Administrative Agent, (iii) each Incremental Facility shall constitute a separate Facility hereunder, and shall be incorporated into the Credit Documents such that the Incremental Lenders have similar rights and privileges to the Lenders, (iv) each Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or Funds, in each case in accordance with the terms set forth below; provided that any ~~cash proceeds (b) Any~~ Lender or any Incremental Lender offered or approached to ~~participate in~~ provide all or a portion of any ~~New Loan Commitments~~ Incremental Facility Commitment may elect or decline, in its sole discretion, to ~~participate~~ provide such Incremental Facility Commitment, (v) the proceeds of each Incremental Facility will be used for the purposes set forth in ~~such increase or new facility. The Borrowers may also invite additional Eligible Assignees reasonably satisfactory to~~ Section 3.11, (vi) the Borrower shall execute a Note in favor of any Incremental Lender requesting a Note representing its Loans under the Incremental ~~Arranger and, solely in connection with a Revolving Credit Commitment Increase or New Revolving~~ Facility, ~~with~~ (vii) on the ~~consent~~ date of incurrence of the ~~Administrative Agent, 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~~ Incremental Loans, ~~as applicable~~the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, to (viii) each such ~~Eligible Assignee~~commitment for an Incremental Facility shall be in a minimum amount of $5,000,000 (and $1,000,000 increments in excess thereof), ~~which consents shall not be unreasonably withheld, conditioned or delayed~~and (ix) ~~to become Lenders pursuant to a joinder agreement to this Agreement. Neither~~ the Administrative Agent ~~nor~~ shall have received from the ~~Collateral Agent~~ Borrower (~~in their respective capacities as such~~A) ~~shall be required to execute~~resolutions, 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, legal opinions and other ~~customary onboarding information~~ corporate authority documents reasonably requested by the Administrative ~~Agent upon request.~~ Agent, substantially the same in form and substance as those delivered on the Closing Date pursuant to Section 4.1 and (cB) 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 Borrowers shall determine the effective date (the “Increase Effective Date”) updated financial projections 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 Facilityan officer’s certificate, in each ~~case, pursuant to this Section 2.14, this Agreement~~ case in form and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases substance reasonably satisfactory 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~~Administrative Agent, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such demonstrating that, after giving effect to ~~each~~ the borrowing of such ~~deemed assignment~~ Incremental Loans and ~~assumption of participations~~the application thereof on a Pro Forma Basis, the ~~percentage of~~ Credit Parties will be in compliance with the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures financial covenants set forth in ~~Sections 2.01~~ Section 5.9 (provided that for purposes of this clause (c) the applicable Consolidated Net Leverage Ratio shall be 4.50 to 1.00 for any fiscal quarter and, if the Collateral Event has occurred, the condition in the proviso set forth in Section 2.22(a)) and ~~2.02 and on~~ no Default or Event of Default shall exist. All Incremental Lenders shall enter into such joinder agreements to give effect thereto as the ~~date of the making of such new Term Loans, and notwithstanding~~ Administrative Agent may reasonably request. (d) Notwithstanding anything to the contrary ~~set forth~~ in ~~Sections 2.01 and 2.02~~Section 9.1 or elsewhere in this Credit Agreement, the Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document as may be necessary solely to incorporate the terms of each Increased Revolver Commitment or Incremental Facility therein. For the avoidance of doubt, such ~~new Loans shall be added to (~~amendments may provide for, among other things, the incorporation of such Incremental Facility into the definitions of “Required Lenders”, “Required Facility Lenders”, “Commitment Percentage”, and ~~form part of) each Borrowing~~ similar terms and sections of ~~outstanding Term Loans under such Term Loan Tranche~~ this Credit Agreement on a ~~pro rata~~ similar basis ~~(based on~~ to each other existing Facility, and may provide for sharing of payments and inclusion in the ~~relative sizes~~ waterfall, and the inclusion of customary provisions for a term loan throughout the ~~various outstanding Borrowings), so that~~Credit Documents.\ (ie) ~~Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with~~ Upon executing the ~~other Facilities, not be Guaranteed~~ joinder documentation requested by any Person that is not a Borrower or Guarantor under each of the other Facilities, and be unsecured or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, ~~the Administrative Agent)~~each bank, ~~(ii) the New Term Facility~~ financial institution or ~~New~~ other entity committing to be a new Revolving ~~Facility, as applicable, shall,~~ Lender or Incremental Lender shall become a Lender for all purposes ~~of prepayments, be treated substantially~~ and to the same extent as (if originally a party hereto and ~~in any event no more favorably than)~~ shall be bound by and entitled to the ~~Term Facility or Revolving~~ benefits of this Agreement and the other Credit ~~Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable)~~Documents, and shall benefit equally and ratably from the Guarantees and security interests (~~iii~~if applicable) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable created by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term LoansSecurity Documents, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis pointsif any; provided that ~~this clause (iii) shall not apply~~ any Lender offered or approached to provide all or a portion of any ~~New Term Facility that (A) is~~ Increased Revolver Commitment may elect or decline, in ~~an aggregate principal amount (together with any other~~ its sole discretion, to provide such ~~New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o~~Increased Revolver Commitments.

Appears in 1 contract

Sources: Credit Agreement (Mednax, Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to 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 ~~Parent Borrower~~Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in ~~the Commitments under~~ any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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)~~hereunder) (each, a “~~Term~~ Commitment Increase”), (iii) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (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 (ivii) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New ~~Term~~ Facility”; and any advance made by a Lender thereunder, a “New ~~Term~~ Loan”; and the commitments thereof, the “New ~~Term~~ 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) the greater of (A) $~~100,000,000~~ 80,500,000 and (B) Consolidated EBITDA ~~for~~ as of the most recently ended four fiscal quarter period for which internal financial statements ~~are available~~ (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), minus the amount incurred prior to the date of incurrence thereof under the First Lien Cash-Capped Incremental Amount (and not reclassified in accordance with the provisions of the First Lien Credit Agreement) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (~~i)(A~~i) all voluntary prepayments of ~~(1) Term~~ Loans made pursuant to Section 2.05(a) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B~~ii) all repurchases of ~~(1) Term~~ Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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)hereof, in each case, to the extent not funded with the proceeds of long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit ~~Facility~~Facility (as such term is defined in the First Lien Credit Agreement))) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount~~5,000,000, 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~~ Commitment established pursuant to this Section 2.14 and New Incremental Notes issued pursuant to Section 2.15: : (A) the ~~Borrowers~~ 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 ~~Borrowers~~ Borrower shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New ~~Loan~~ Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the ~~Cash-~~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 ~~Ratio-~~ Ratio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) ~~and/or~~ and then calculating the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o,

Appears in 1 contract

Sources: Second Lien Credit Agreement

Appears in 1 contract

Sources: Credit Agreement (Darling International Inc)

Incremental Facilities. (a) ~~The Borrowers may~~Parent Borrower shall have the right, ~~from time to time~~ but not the obligation, after the later of (i) the date on which a Successful Syndication occurs or (ii) the Closing Date, upon notice ~~by the Parent Borrower~~ to the ~~Person appointed by the Borrower~~ Administrative Agent (an “Incremental Borrowing Notice”), to ~~arrange an incremental Facility~~ request (~~such Person (who~~ A) (i) one or more new commitments which may be of the ~~Administrative Agent, if it so agrees,~~ 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 (~~ii)~~ collectively with any ~~other Person appointed by the Parent Borrower)~~Term Loan Increase, the “Incremental ~~Arranger~~Term Loan Facilities”), and/or (B) one or more increases in the aggregate commitments under the Initial Revolving Facility (each, an “Incremental Revolving Increase”) ~~specifying~~ (which may, with respect to any Incremental Revolving Increase, at the ~~proposed~~ 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 ~~proposed currency denomination thereof~~Specified Purchase Agreement Representations, ~~request~~ which shall be true and correct in all material respects (iexcept 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 in (other than the ~~Commitments under~~ Incremental Amendment evidencing such increase) and (2) subject to the terms and conditions of Section 2.16(e) below and (y) any ~~Revolving Tranche (which~~ Incremental Facility that is a Term Loan Increase 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~~ set forth in ~~clause (d) below with respect to amortization~~Section 2.16(a)(6)) and pursuant to the same documentation as the Initial Term Loan Facility on the date of such increase (~~each,~~ 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 ~~“Term Commitment Increase”~~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; (~~iii~~5) the ~~addition of one or more new revolving credit facilities~~ yield applicable to any Incremental Initial Revolving Facility shall be equal to the ~~Facilities~~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, ~~in each case~~but exclusive of any arrangement, ~~in such currency~~ underwriting or ~~currencies as the~~ similar fees); provided, that Parent Borrower ~~identifies in such notice (each, a “New~~ may increase the pricing of the Initial Revolving Facility~~” and~~, without the consent of the Administrative Agent or any ~~advance made by a Lender thereunder~~Lender, ~~a “New Revolving Loan”; and~~ such that the ~~commitments thereof~~foregoing is true, including increasing the Applicable Margin, the ~~“New Revolving Commitment”~~Commitment Fee, adding or increasing an existing Eurodollar Rate floor (if applicable), and paying additional OID and/or upfront fees; (6) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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) the greater of (A) ~~$100,000,000~~ 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) ~~Consolidated EBITDA~~ 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 ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ 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 (~~and after giving effect~~ but not the interest rate margin) applicable to ~~any acquisition consummated concurrently therewith on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent with~~ the ~~definition~~ Initial Term Loans shall be increased to the extent of ~~“Consolidated EBITDA” and Section 1.10~~such differential between the Eurodollar Rate or Base Rate floors; (7) (A) the ~~“Cash-Capped~~ maturity of any Incremental ~~Facility”), (y) an unlimited amount (~~Term Loan Facility shall not be earlier than the ~~“Ratio-Based Incremental Facility”) so long as~~ Latest Maturity Date of the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Initial Term Loans and (B) ~~all repurchases~~ 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 ~~Loans made~~ 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 ~~terms hereof and~~ Loan Documents subject solely to the reasonable satisfaction of the Administrative Agent (without any consent of any other Secured Creditor being required) or (2) ~~New Incremental Notes that are secured on a pari passu basis with~~ 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) ~~voluntary prepayments~~ 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 ~~all other Indebtedness secured~~ Incremental Borrowing Notice, unless otherwise agreed to by ~~a Lien that is pari passu with~~ the ~~Liens securing the Obligations~~ Administrative Agent) and (iii) ~~voluntary prepayments of Revolving Credit~~ 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 to Section 2.05(a~~(“Other Term Loans”). (d) ~~to the extent accompanied by a corresponding, permanent reduction in the~~ Any Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments ~~pursuant~~ from existing Lenders (each of which shall be entitled to ~~Section 2.06(a)~~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 ~~each case, to the extent not funded with the proceeds~~ connection therewith. Commitments in respect of ~~long term Indebtedness~~ Incremental Facilities shall become Commitments (~~excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and~~ or in the case of ~~any~~ an Incremental Revolving Increase to be provided by an existing Revolving Lender, an increase in such ~~prepayment or repurchase at a price below par~~Lender’s applicable Revolving Commitment), ~~based on the amount of the actual cash expenditure~~ under this Agreement pursuant to an amendment (~~the~~ an “~~Prepayment-Based~~ Incremental ~~Facility~~Amendment”) ~~(such sum~~to this Agreement and, ~~at any such time~~as appropriate, the ~~“Incremental Amount”); provided that~~ other Loan Documents, executed by the Parent Borrower, any Additional Borrower, each Lender agreeing to provide such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 FacilityCommitment, if any, ~~prior to utilization of the Cash-Capped Incremental Facility~~each Additional Lender, if any, and the ~~Borrowers shall be deemed to have used the Ratio-Based~~ Administrative Agent. Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 Term Loans may be ~~incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility~~made, and ~~proceeds from any such incurrence~~ Incremental Revolving Credit Commitments 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicableprovided, by ~~the amount of such redesignated Indebtedness); provided~~any existing Lender or by any Additional Lender, provided that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, each ~~L/C~~ LC Issuer ~~(in each case,~~ and the Swing Line Lender shall have consented to ~~the extent the~~ such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if any such consent ~~of any of the foregoing~~ would be required ~~to assign Revolving Credit~~ 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 ~~such Eligible Assignee~~be made thereunder, ~~which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to~~ consistent with the provisions set forth in this ~~Agreement~~Section 2.16. ~~Neither the~~ 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify each Lender as to the ~~applicable Lenders~~ effectiveness of each Incremental Amendment. Each of the ~~final allocation~~ parties hereto hereby agrees that, the Incremental Amendment may, without the consent of any other Lenders, effect 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 amendments to ~~this Section 2.14,~~ this Agreement and the other Loan Documents as may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or ~~appropriate to give effect to such increase or new facility~~ appropriate, in ~~accordance with its terms as set forth herein, including, for~~ the ~~avoidance~~ reasonable opinion of ~~doubt, at~~ the ~~option of~~ Administrative Agent and the Parent Borrower, ~~with respect~~ to effect the provisions of this Section 2.16, notwithstanding any ~~increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As~~ requirements of ~~the Increase Effective Date~~Section 10.12 (including, in the case of ~~an increase to an existing~~ Incremental Term ~~Loan Tranche~~Loans structured as a separate Class, the ~~amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a)~~ incorporation of class voting rights that prevent Lenders from agreeing to modifications that would allocate (or ~~any other applicable amortization schedule for New~~ reallocate) payments to the Lenders in a non-pro rata manner unless such modifications are agreed to by all of the Lenders holding the Loans or Incremental Term Loans or ~~Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the~~ Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(iCommitments whose payment rights are being modified)) 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable. (e) ~~On the Increase Effective Date~~ Upon each Incremental Revolving Increase, each Lender with ~~respect to an increase to an existing~~ a Revolving ~~Tranche, (x) each Revolving Credit Lender~~ 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 ~~increase to the~~ Incremental Revolving ~~Credit Commitments~~ Increase (each, a an “Incremental Initial Revolving ~~Commitment Increase~~ Facility Lender”)) in respect of such increase, and each such Incremental Initial Revolving ~~Commitment Increase~~ Facility Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such ~~Revolving Credit~~ Lender’s participations hereunder in outstanding ~~L/C Obligations~~ 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 ~~L/C Obligations represented~~ Letters of Credit and (B) participations hereunder in Swing Loans held by ~~such~~ each Lender with a Revolving Commitment ~~Increase Lender~~ of such Class (including each such Incremental Initial Revolving Facility Lender) will equal the percentage of the aggregate Revolving ~~Credit~~ Commitments of such Class of all ~~Revolving Credit~~ Lenders represented by such ~~Revolving Commitment Increase~~ Lender’s Revolving ~~Credit~~ Commitment ~~and (y) if, on the date~~ of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o

Appears in 1 contract

Sources: Credit Agreement (PGT, Inc.)

Incremental Facilities. ~~(a) The Borrowers may~~So long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, ~~from time to time after the Closing Date, upon notice by the Parent Borrower~~ and subject to the ~~Person appointed by~~ terms and conditions set forth herein, the Borrower shall have the right 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase incur additional Indebtedness under this Agreement in the ~~Commitments under any~~ form of increases to the Tranche B Term Facility or 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 Facility or one or more ~~new revolving credit facilities to the Facilities, in each case, in such currency~~ additional Tranche B Term Loans or ~~currencies as the Parent Borrower identifies in such notice~~ Revolving Loans (~~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, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan CommitmentsAdditional Loans”) in an aggregate principal amount not to exceed ~~the sum of~~ One Hundred Fifty Million Dollars (x$150,000,000); provided that, (a) the ~~greater of~~ aggregate Revolving Commitment shall not be increased hereunder by more than $50,000,000, (Ab) ~~$100,000,000~~ the Additional Loans shall constitute Obligations and ~~(B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (~~will be secured and ~~after giving effect to any acquisition consummated concurrently therewith on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent~~ guaranteed with the definition of “Consolidated EBITDA” and Section 1.10) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured other Obligations on a pari passu basis ~~with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans~~therewith, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (yc) 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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, Additional Loans shall have substantially the effect of increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause same terms (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, other than pricing with respect to ~~any New Loan Commitments,~~ additional tranches) as the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving existing 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 Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New B Term Loans or ~~Specified Refinancing Term~~ Revolving Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, ~~unless~~ (d) the ~~Borrowers otherwise elect (but in any event~~ Additional Loans shall have a final maturity date no ~~more favorably~~ earlier than the ~~existing~~ Term Loan Maturity Date or the Revolving Termination Date, as the case may be, and the remaining weighted average life of the Additional Loans shall not be shorter than the remaining weighted average life of the Tranche B Term Loans or Revolving ~~Credit~~ Loans, as ~~applicable~~the case may be, (e) each such Additional Loan shall be in a minimum of $25,000,000 and integral multiples of $5,000,000 in excess thereof, (f) the Additional Loans shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the terms set forth below, (g) the proceeds of the Additional Loans will be used for general corporate purposes that do not conflict with the provisions of this Agreement, including, without limitation, the refinancing of the 6 5/8% Senior Notes or the Senior Convertible Notes, (h) the Borrower shall execute a note in form and substance reasonably satisfactory to the Administrative Agent in favor of any new Lender or any existing Lender requesting a note to evidence its Additional Loans, (i) the conditions to extensions of credit in Section 6.2 shall have been satisfied or waived, (j) 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 the Additional Loans on a pro forma basis, (x) the Borrower will be in compliance with the financial covenants set forth in Sections 8.1(a) and (b), and (~~iii~~y) no Default or Event of Default shall exist and be continuing or shall result therefrom, and (l) the Administrative Agent shall have received legal opinions, board resolutions and other documentation as reasonably required by the Joint Lead Arrangers and consistent with ~~respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured~~ those delivered on ~~a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after~~ the Closing Date under Section 6.1 and ~~under~~ such additional documents and filings (including amendments to the ~~Ratio-Based Incremental~~ Security Documents and title endorsement bring downs) as the Joint Lead Arrangers may reasonably require to assure that the Additional Loans are secured by the Collateral ratably with the existing Loans. Participation in the Additional Loans shall be offered first to each of the existing Lenders in the applicable Facility, but each such Lender shall have no obligation to provide all or any portion of the ~~All-in Yield payable by~~ Additional Loans. If the ~~Borrowers applicable~~ amount of the Additional Loans shall exceed the commitments which the existing Lenders are willing to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield provide with respect to the ~~InitialTranche B Term Loans is increased~~ Additional Loans, then the Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the ~~amount necessary so that~~ Administrative Agent to join this Agreement as Lenders hereunder for the ~~difference between~~ portion of the ~~All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term~~ Additional Loans ~~is equal to 75 basis points;~~ not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder or accession agreements to give effect thereto as the Administrative Agent may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this ~~clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with~~ Agreement or any other ~~such New Term Facility~~Loan Documents with the Borrower’s consent (not to be unreasonably withheld) ~~equal~~ as may be necessary to ~~or less than $100,000,000, (B) has a final maturity later than one year after~~ incorporate the ~~Latest Maturity Date~~ terms of the ~~then o~~Additional Loans therein.

Appears in 1 contract

Sources: Credit Agreement (Valassis Communications Inc)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the ~~Closing Date~~earlier of (i) the date on which the Delayed Draw Term Loans have been fully borrowed and (ii) the date on which the Delayed Draw Commitment has expired (unless, in the case of clause (w) below the Borrower terminates such Delayed Draw Commitment), upon notice by the ~~Parent~~ Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (such Person (~~who (i~~other than the Borrower or an Affiliate of the Borrower) ~~may be the Administrative Agent, if it so agrees, or (ii) any other Person~~ appointed by the ~~Parent Borrower)~~Borrower after consultation with the Blackstone Credit Representative, the “Incremental Arranger”) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (a “Revolving Credit Commitment Increase”); provided that the aggregate of all Revolving Credit Commitment Increases may not exceed $10,000,000 (which, for the avoidance of doubt, shall be part of, and not in addition to, the Cash-Capped Incremental Facility), (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 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 loan facilities, in each ~~case, in such currency or currencies as the Parent Borrower identifies in such notice~~ case (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 by an amount not to exceed the sum of (~~x) the greater of (A~~w) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) 25,000,000 (the “Cash-Capped Incremental Facility”)) provided, that the Blackstone Credit Representative shall be given the Right of First Refusal to provide such Cash-Capped Incremental Facility, (yx) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied ~~and~~ plus (zy) an amount equal to ~~(i)(A)~~ all voluntary prepayments of ~~(1)~~ pari passu Term Loans (including for the avoidance of doubt, any New Term Loans that are pari passu in right of payment and security with the Initial Term Loans) made pursuant to Section 2.05(a) and ~~(2) New Incremental Notes that are secured on a~~ repurchases of pari passu ~~basis with the Term Loans and (B) all repurchases of (1)~~ Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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~~ long-term Indebtedness (~~excluding~~other than, ~~for~~ to the ~~avoidance of doubt,~~ extent funded with the proceeds of ~~any revolving credit facility (including~~ the Revolving Credit ~~Facility)~~Loans or any other revolving facility) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such sum, at any such ~~time~~time and subject to Section 1.02(i), the “Incremental Amount”~~); provided that any such request for an increase shall be in a minimum amount~~ ) minus (z) the outstanding principal balance of all loans and all unfunded commitments constituting part of the ~~lesser~~ Incremental Equivalent Debt; provided, that the aggregate of ~~(x)~~ all Revolving Credit Commitment Increases may not exceed $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.1410,000,000; provided, further, that for purposes of any New Loan Commitments established pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt issued pursuant to Section 2.15: , (A) at the ~~Borrowers~~ Borrower’s option, the Borrower shall be deemed to have used amounts under the Ratio-Based Incremental Facility (to the extent permitted thereby) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and the Borrower shall be deemed to have used the Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt pursuant to Section 2.15 may be incurred under the Cash-Capped Incremental Facility, the Ratio-Based ~~Incremental Facility (to the extent compliant therewith), the Cash-Capped~~ Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility and the Prepayment-Based Incremental Facility may be utilized in a single transaction or series of related transactions by first calculating the incurrence under the ~~Ratio-~~ Ratio-Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the ~~Prepayment-~~Prepayment- Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ utilized pursuant to the Cash-Capped Incremental Facility) ~~and/or~~ and then calculating the incurrence under the Cash-Capped Incremental ~~Facility,~~ Facility and (C) the ~~Borrowers~~ Borrower may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped ~~Incremental Facility or the Prepayment-Based~~ Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the ~~Borrowers~~ 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~~ reducing the aggregate principal amount outstanding under the Cash-Capped Incremental Facility ~~or the Prepayment-Based Incremental Facility, as applicable,~~ by the amount of such redesignated Indebtedness)~~; provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end~~ . The Borrower may designate any Incremental Arranger of any ~~fiscal quarter,~~ New Loan Commitments with such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability titles under the ~~Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds~~New Loan Commitments as Borrower may deem appropriate. (b) Any Lender approached to participate in any New Loan Commitments or Revolving Credit Commitment Increase may elect or decline, in its sole discretion, to participate in such increase or new facility. The ~~Borrowers~~ 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~~Increase, with the consent of the Blackstone Credit Representative, the Ally Representative, Administrative ~~Agent,~~ Agent and 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~~ consent shall not be unreasonably ~~withheld, conditioned~~ 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~~effective (but a copy of such joinder shall be provided to the Administrative Agent); provided that, with respect to any New Loan Commitments, the ~~Borrowers~~ Borrower must provide to the Blackstone Credit Representative, the Ally Representative and the Administrative Agent ~~(x)~~ the documentation providing for such New Loan ~~Commitments and (y) a notice of~~ Commitments. Notwithstanding anything herein in the ~~identity of any new Lender; provided further~~contrary, ~~that such new Lender~~ no Other Affiliate shall ~~agree~~ be permitted to provide ~~applicable “know your customer”, anti-money laundering rules~~ any New Term Loan or New Term Commitment unless such Other Affiliate and ~~regulations, including~~ such Indebtedness is subject to the ~~Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request~~provisions of Section 10.07(i) as if such Indebtedness had been assigned to such Other Affiliate. (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 ~~Borrowers~~ Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such ~~increase,~~ increase or New Term ~~Facility or New Revolving~~ Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders and the Administrative Agent of the final allocation of such ~~increase,~~ increase or 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~~ Borrower, the Administrative Agent and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger and 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, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, ~~the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or~~ any ~~other~~ applicable amortization schedule for New Term Loans or Specified Refinancing Term ~~Loans)~~ Loans shall be amended in a writing (which may be executed and delivered by the ~~Borrowers~~ Borrower, the Administrative Agent and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger and the Administrative Agent to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility ~~or New Revolving Facility~~ pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist after giving effect to such ~~increase~~increase (except in connection with any acquisition or similar investment or Specified Change of Control transaction permitted under this Agreement, where no Event of Default under Section 8.01(a), (f) or (g) shall be the standard at the time of funding even in the case of the applicability of Section 1.02(i)); (ii) ) (A) in the case of any increase of the Revolving Tranche, ~~(1) the final maturity shall be~~ the same as terms and conditions, including the Maturity ~~Date applicable to the Revolving Credit Facility~~Date, ~~(2) no~~ amortization or mandatory commitment ~~reduction~~ reductions prior to the Maturity ~~Date applicable to the Revolving Credit Facility shall be required~~ Date, and ~~(3) the terms and documentation~~ documentation, applicable to the Revolving Credit Facility shall apply, (B) in the case of any ~~New Revolving Facility, (1) other than with respect to any Extendable Bridge Loans~~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 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 a, 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 (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 the then remaining Weighted Average Life to Maturity of any existing Term Loan Tranche; provided, that Extendable Bridge Loans/Interim Debt may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and, with respect to Extendable Bridge Loans/Interim Debt a, 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; (iii) except with respect to All-in Yield and as set forth in subclause (B) 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 shall have the same terms as the Term Facility, respectively; provided, that (x) to the extent such terms (excluding pricing, which shall include, for the avoidance of doubt, any “most favored nation” pricing provisions) are more favorable to the existing Lenders than comparable terms existing in the Loan Documents, such terms may be, in consultation with the Blackstone Credit Representative, the Ally Representative and 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 Incremental Arranger, the Blackstone Credit Representative, the Ally Representative and the Administrative Agent and (iv) to the extent reasonably requested by the Incremental Arranger or the Administrative Agent, 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 the Borrower and each material Guarantor that is organized in a jurisdiction for which counsel to the Blackstone Credit Representative, the Ally Representative or the Administrative Agent advises that such deliveries are reasonably necessary to preserve the Collateral in such jurisdiction (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Incremental Arranger). Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrower. (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender under such Revolving Tranche immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations relating to Letters of Credit issued (or arranged) under such Revolving Tranche 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~~ under such Revolving ~~Commitment Increase Lender~~ Tranche will equal the percentage of the aggregate Revolving Credit Commitments under such Revolving Tranche of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment under such Tranche and (y) if, on the date of such increase, there are any Revolving Credit Loans ~~outstanding~~outstanding under such Revolving Tranche, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans under such Revolving Tranche made hereunder so that the Revolving Credit Loans are thereafter held by the Revolving Credit Lenders according to their Pro Rata Shares (after giving effect to the increase in Revolving Commitments) (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oincreas

Appears in 1 contract

Sources: Credit Agreement (KLDiscovery Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower or any Guarantor may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to 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 Parent Borrower)~~Person, the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 (ivii) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment~~” and~~ ”) and/or (iii) an increase in the amount of the Revolving Credit Commitments (a “Revolving Commitment Increase”; and, together with the ~~Revolving Credit~~ Term Commitment ~~Increase,~~ Increase and the New ~~Revolving~~ Term Commitments ~~and the Term Commitment Increase,~~ the “New Loan Commitments”) ~~in an~~ 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”) (I) the greater of (A) $~~100,000,000~~ 325,000,000 and (B) 100% of Consolidated EBITDA ~~for~~ of the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ 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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then othe

Appears in 1 contract

Sources: Credit Agreement (V2X, Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Parent Borrower may, ~~from time to time after the Closing Date, upon~~ by written notice ~~by the Parent Borrower~~ to the ~~Person appointed by the Borrower~~ Administrative Agent at any time, on one or more occasions, request 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving ~~credit~~ facilities to and/or increase the ~~Facilities, in each case, in~~ principal amount of any such ~~currency or currencies as the Parent Borrower identifies in such notice~~ tranche of incremental revolving facilities (each, a an “~~New~~ Incremental Revolving Facility” and, together with any ~~advance made by a Lender thereunder~~Incremental Term Facility, a “~~New Revolving Loan~~Incremental Facilities”; and the commitments thereof, the “New Revolving Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender loans thereunder, a “~~New Term Loan”; and the commitments thereof~~Incremental Revolving Loans” and, ~~the “New Term Commitment” and~~ together with ~~the Revolving Credit Commitment Increase~~any Incremental Term Loans, ~~the New Revolving Commitments and the Term Commitment Increase, the~~ “~~New Loan Commitments~~Incremental Loans”) in an aggregate amount not to exceed the ~~sum~~ 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 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 ~~greater~~ Dollar Equivalent of ~~(A)~~ $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”)7,500,000, (y) ~~an unlimited amount (the “Ratio-Based~~ with respect to Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of Revolving ~~Credit Loans made pursuant to Section 2.05(a) to the extent accompanied by a corresponding, permanent reduction~~ Commitments denominated in ~~the Revolving Credit Commitments pursuant to Section 2.06(a)~~dollars, in ~~each case~~minimum increments of $10,000,000, and with respect to ~~the extent not funded with the proceeds of long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the~~ Incremental Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, in minimum increments of the ~~Alternative Currency~~ Dollar Equivalent of ~~such amount,~~ $5,000,000 or (z) equal to the remaining Incremental Amount) and (yii) the ~~entire amount of any increase that may~~ date, which shall be a Business Day, on which such Incremental Term Loans are requested ~~under this Section 2.14; provided, further, that for purposes of any New Loan~~ to be made and/or Incremental Revolving Commitments ~~established~~ are requested to become effective (the “Increased Amount Date”) 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 Borrowers shall be deemed to have used the Ratio-Based an Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceedsActivation Notice. (b) ~~Any~~ Incremental Loans may be provided by any existing Lender ~~approached~~ (it being understood each existing Lender shall have no obligation to participate in any ~~New Loan Commitments may elect~~ Incremental Facility), or ~~decline, in its sole discretion, to participate in~~ by any other lender (any 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 other lender being called an “Additional Lender”); provided that the Administrative ~~Agent, each L/C Issuer~~ Agent and Issuing Bank shall have consented (~~in each case,~~ such consent not to ~~the extent the~~ be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent ~~of any of the foregoing~~ would be required ~~to assign Revolving Credit~~ under Section 10.04(b) for an assignment of Loans ~~or Term Loans, as applicable,~~ to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Additional Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) ~~If (i) a Revolving Tranche~~ The creation or ~~a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term~~ provision of any Incremental Facility or ~~New Revolving Facility is added in accordance with this Section 2.14,~~ Incremental Loan shall not require the ~~Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation~~ approval of ~~such increase, New Term~~ any existing Lender other than any existing Lender providing all or part of any Incremental Facility or ~~New Revolving Facility among the applicable Lenders. The~~ Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective DateLoan. (d) ~~With respect~~ The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to ~~any~~ 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. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans and/or Incremental Revolving ~~Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant~~ Commitments to ~~this Section 2.14,~~ be made thereunder; provided that (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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 date of any ~~New Revolving Facility,~~ Incremental Term Loan (1x) ~~other than with respect to any Extendable Bridge Loans, the final maturity~~ that is a “term loan A” shall be no earlier than the Latest Maturity ~~Date applicable (e) On the Increase Effective~~ Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment Term A Loans and (y) ifthat is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, on (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 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 ~~increase~~Incremental Term Loan, ~~there are any Revolving Credit Loans outstanding,~~ (iii) such ~~Revolving Credit Loans shall on~~ Incremental Facilities may be pari passu or ~~prior~~ subordinated in right of payment with respect to the ~~Increase Effective~~ Loans outstanding (or made on) the Vion Acquisition Closing 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 ~~prepaid from~~ unsecured (it being understood any such Indebtedness incurred in reliance on the ~~proceeds~~ Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien” for purposes of ~~Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments~~calculating the Secured Leverage Ratio set forth therein, regardless of whether secured or unsecured), ~~which~~ (iv) any 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 (other than scheduled amortization payments) of Incremental 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 with all then existing Term Loans (~~based on the relative sizes of the various outstanding Borrowings~~and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), ~~so that~~ 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 (ibut not on a greater than pro rata basis), (v) ~~Any New~~ 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) from the Effective Date, if the initial yield over the applicable base rate (such calculation for both the Incremental Facility and ~~New~~ the applicable Credit Facility, to include the upfront fees, any interest rate floors (only to the extent greater than that applicable to the Credit Facility then in effect) and any OID (as defined below) but excluding any arrangement, underwriting or similar fee paid to the Administrative Agent, the Commitment Parties under the Credit Facilities or relevant Persons under the Incremental Facility) in respect of any Incremental Term ~~Facility shall~~ Loans and/or Incremental Revolving Commitments that rank pari passu in right of payment or with respect to security with the ~~other Facilities, not be Guaranteed by any Person that is not a Borrower or Guarantor under each of~~ relevant Credit Facilities incurred on the ~~other Facilities,~~ Vion Acquisition Closing Date and ~~be unsecured or secured either~~ maturing on ~~a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same~~ (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any ~~Dollar~~“term loan B”, on or after) the maturity date of the existing applicable Credit Facility exceeds the initial yield for such existing applicable Credit Facility by more than 50 basis points (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-~~denominated~~year life to maturity), ~~floating rate New Term Facility that~~ the Applicable Margin for the existing applicable Credit Facility, to the extent it is pari passu in right of ~~payments and secured on a pari passu basis~~ payment or security with ~~InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based~~ such applicable Incremental Facility, ~~the All-in Yield payable by the Borrowers applicable to such New Term Facility~~ shall be ~~determined by~~ increased so that the ~~Borrowers and the Lenders providing~~ initial yield in respect of such ~~New~~ Incremental Term ~~Facility and shall not be~~ Loans and/or Incremental Revolving Commitments is no more than 75 50 basis points higher than the ~~corresponding All-in Yield payable by the Borrowers~~ initial yield for the ~~InitialTranche B Term Loans~~existing applicable Credit 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, ~~unless~~ (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 ~~All-~~Administrative Agent may, in ~~Yield~~ 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 ~~InitialTranche B Term~~ Loans ~~is increased~~ under the existing applicable Credit Facility shall be reasonably satisfactory to the ~~amount~~ Administrative Agent (except to the extent permitted by clauses (i) through (vii) above). 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 ~~so that~~ or appropriate, in the ~~difference between~~ reasonable opinion of the ~~All-in Yield with respect to such New Term Facility~~ Administrative Agent and the ~~corresponding All-~~Borrowers to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in ~~Yield~~ 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 ~~InitialTranche B Term Loans~~ date on which such Loan is ~~equal~~ made or of such effectiveness, (A) the conditions set forth in Section 4.04 shall be satisfied (it being understood that all references to ~~75 basis points~~“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 Permitted Acquisition, to the extent agreed to by the lenders providing such Incremental Facility, customary “SunGard” conditionality (including making determinations pursuant to the Permitted Acquisition Determination Method) may be implemented in lieu of the conditions set forth in this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oe).

Appears in 1 contract

Sources: Credit Agreement (Darling International Inc)

Incremental Facilities. (a) The ~~Borrowers~~ Parent Borrower may, ~~from time to time after the Closing Date, upon~~ by written notice ~~by the Parent Borrower~~ to the ~~Person appointed by the Borrower~~ Administrative Agent at any time, on one or more occasions, request 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 add one or more new Classes of term facilities and/or increase the principal amount of any Class of Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the 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 Classes of incremental revolving ~~credit~~ facilities ~~to the Facilities~~(any such new Class or increase, ~~in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a~~ an “~~New~~ Incremental Revolving Facility” and, together with any ~~advance made by a Lender thereunder~~Incremental Term Facility, a “~~New Revolving Loan~~Incremental Facilities”; and the commitments thereof, the “New Revolving Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender loans thereunder, a “~~New Term Loan”; and the commitments thereof~~Incremental Revolving Loans” and, ~~the “New Term Commitment” and~~ together with ~~the Revolving Credit Commitment Increase~~any Incremental Term Loans, ~~the New Revolving Commitments and the Term Commitment Increase, the~~ “~~New Loan Commitments~~Incremental Loans”) in an aggregate amount not to exceed the ~~sum~~ 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) ~~the greater~~ with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of ~~(A)~~ not less than $~~100,000,000~~ 10,000,000, and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”)$5,000,000 increments in excess thereof, (y) ~~an unlimited amount (the “Ratio-Based~~ with respect to Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments Facilities 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 amounts under the Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the an aggregate principal amount of ~~Indebtedness being so redesignated under~~ not less than an amount in such Alternative Currency equal to the ~~Ratio-Based~~ 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 ~~(which,~~ Activation Notice. Any Incremental Revolving Facility may provide for the ~~avoidance of doubt, shall have~~ 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 ~~effect of increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental~~ Revolving Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds. (b) ~~Any~~ Incremental Loans may be provided by any existing Lender ~~approached~~ (it being understood each existing Lender shall have no obligation to participate in any ~~New Loan Commitments may elect~~ Incremental Facility), or ~~decline, in its sole discretion, to participate in~~ by any other lender (any 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 other lender being called an “Additional Lender”); provided that the Administrative ~~Agent,~~ Agent and each ~~L/C Issuer~~ Issuing Bank shall have consented (~~in each case,~~ such consent not to ~~the extent the consent of any of the foregoing would be required to assign Revolving Credit Loans or Term Loans, as applicable, to such Eligible Assignee, which consents shall not~~ be unreasonably withheld, conditioned or delayed) to ~~become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall~~ 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 ~~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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Additional Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) ~~If (i) a Revolving Tranche~~ The creation or ~~a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term~~ provision of any Incremental Facility or ~~New Revolving Facility is added in accordance with this Section 2.14,~~ Incremental Loan shall not require the ~~Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation~~ approval of ~~such increase, New Term~~ any existing Lender other than any existing Lender providing all or part of any Incremental Facility or ~~New Revolving Facility among the applicable Lenders. The~~ Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective DateLoan. (d) ~~With respect~~ The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to ~~any~~ 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 ~~Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant~~ Commitments to ~~this Section 2.14,~~ be set forth in the respective Incremental Assumption Agreement; provided that (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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 date of any ~~New Revolving Facility,~~ Incremental Term Loan (1x) ~~other than with respect to any Extendable Bridge Loans, the final maturity~~ that is a “term loan A” shall be no earlier than the Latest Maturity ~~Date applicable (e) On the Increase Effective~~ Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in Term A Loans then 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) ifthat is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans then outstanding, on (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 ~~increase~~Incremental Term Loan, ~~there are any Revolving Credit Loans outstanding,~~ (iii) such ~~Revolving Credit Loans~~ Incremental Facilities shall be secured on ~~or prior~~ a pari passu basis with respect to the ~~Increase Effective~~ 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 ~~prepaid from~~ unsecured (it being understood any such Indebtedness incurred in reliance on the ~~proceeds~~ 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 ~~Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments~~calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), ~~which~~ (iv) any mandatory 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 (other than scheduled amortization payments) of Incremental 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 with all then existing Term Loans (~~based~~ 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 ~~relative sizes~~ 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 ~~various outstanding Borrowings), so that (i) Any New Revolving Facility and New~~ Restatement Effective Date under the Ratio Incremental Amount designated as Term ~~Facility shall~~ B Loans that rank pari passu in right of payment and security with the ~~other Facilities~~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 ~~Guaranteed~~ 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 ~~Borrower or Guarantor under each of the other Facilities,~~ Subsidiary Loan Party and ~~be unsecured or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same~~ (~~or less~~ix) ~~Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be~~ subject to ~~intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent),~~ clauses (i) and (ii) above, 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, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect amortization schedule applicable to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental ~~Facility, the All-in Yield payable by the Borrowers applicable to such New~~ Term Facility shall be determined by the ~~Borrowers~~ Parent Borrower and ~~the Lenders providing such New Term Facility~~ lenders thereunder. All terms and ~~shall~~ documentation with respect to Incremental Facilities which are not ~~be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield~~ substantially consistent from those with respect to the ~~InitialTranche B Term~~ Loans ~~is increased~~ under the existing applicable Credit Facility shall be reasonably satisfactory to the ~~amount necessary so that~~ Administrative Agent (except to the ~~difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause~~ extent (~~iii~~i) ~~shall not apply to any New Term Facility that~~ permitted by clauses (Ai) ~~is in an aggregate principal amount~~ through (~~together with any other such New Term Facility~~vii) ~~equal to or less than $100,000,000~~above, (Bii) ~~has a final maturity later than one year~~ 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 ~~then o~~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 ~~Borrowers may, from time to time after the Closing Date, upon~~ Borrower may by written notice ~~by the Parent Borrower~~ to the ~~Person appointed by~~ Administrative Agent elect to request the ~~Borrower to arrange an incremental Facility~~ establishment of one or more (~~such Person (who (i~~xw) additional term loans, which may be of the ~~Administrative Agent~~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, ~~if it so agrees, or (ii) any other Person appointed by the Parent Borrower)~~collectively, the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (a “Revolving Credit Commitment IncreaseTerm Loan Commitments”), (iiyx) ~~an increase in any Term Loan Tranche then outstanding (~~additional term letter of credit loans, which ~~shall~~ may be on of the same ~~terms as, and become part of, the~~ Class as any then-existing Term ~~Loan Tranche proposed to be increased hereunder~~ C Loans (~~except as otherwise provided in clause (d) below with respect to amortization)) (each,~~ a “Term ~~Commitment~~ C Loan Increase”), ) or a separate Class of Term C Loans (iii) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Revolving Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”; and the commitments ~~thereof~~for additional term loans of the same Class or a separate Class, collectively, the “New Revolving Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Incremental 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 C Loan Commitments”) in an amount not to exceed the sum of (x) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments additional commitments consisting of ~~(1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases~~ one or more letter of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) facilities (such ~~sum~~commitments, ~~at any such time~~collectively, the “Incremental ~~Amount~~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”)~~; provided that any such request for~~ , by an ~~increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such~~ aggregate 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur when combined with the aggregate principal amount of ~~Indebtedness being so redesignated under the Ratio-Based Incremental Facility~~ all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (which, for the avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated iv) (solely to the extent ~~that, at the end~~ of ~~any fiscal quarter, such redesignation would be permitted under this~~ refinancing Indebtedness incurred in reliance on clause (Ciii) of Section 10.1(y)), ~~and (D) solely for~~ not in excess of 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 Maximum Incremental ~~Facility~~ Facilities Amount at the time of ~~incurrence~~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 ~~cash proceeds~~ Lender or any Person (bother than a natural Person) ~~Any~~ to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to ~~participate in any New~~ provide all or a portion of the Incremental Loan Commitments may elect or decline, in its sole discretion, to ~~participate in~~ 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 ~~increase~~ 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 ~~new facility. The Borrowers may also invite additional Eligible Assignees reasonably satisfactory~~ immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental ~~Arranger and, solely~~ Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a ~~Revolving Credit~~ 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 ~~Increase~~ immediately before or ~~New Revolving Facility, with~~ immediately after giving effect to such Incremental Loan Commitment and the ~~consent of the Administrative Agent, each L/C Issuer (in each case, to the extent the consent~~ borrowing of any Incremental Loans thereunder, (ii) in connection with any incurrence of ~~the foregoing would be required to assign Revolving Credit Loans or Term~~ Incremental Loans, ~~as applicable, to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned~~ or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New establishment of Incremental Loan Commitments, on an Increased Amount Date, there shall be no requirement for the ~~Borrowers must provide~~ Borrower to bring down the ~~Administrative Agent~~ representations and warranties under the Credit Documents, (xiii) the ~~documentation providing for such New~~ Incremental Loan Commitments ~~and (y) a notice of the identity of any new Lender; provided further, that such new Lender~~ shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, be effected pursuant to ~~this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be~~ one or more Incremental Amendments executed and delivered by the ~~Borrowers~~ Borrower and the ~~Incremental Arranger (~~Administrative Agent, and each of which shall be recorded in the ~~Lenders hereby authorize the any such Incremental Arranger to execute~~ Register and ~~deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases~~ shall be subject to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased requirements set forth in Section ~~2.07(a~~5.4(d) and (or e), and (iv) the Borrower shall make any ~~other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended~~ payments required pursuant to Section 2.11 in ~~writing (which may be executed and delivered by the Borrowers and~~ connection with the Incremental ~~Arranger (and the Lenders hereby authorize~~ Loan Commitments, as applicable. No Lender shall have any ~~such Incremental Arranger~~ obligation to ~~execute and deliver~~ provide 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 Commitments pursuant to this Section ~~2.14~~2.14(a). For all purposes of this Agreement, (ia) ~~no Event~~ any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of ~~Default~~ Term Loans or (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (Ay) in the case of ~~any increase~~ a Term Loan Increase, a part of the ~~Revolving Tranche~~series of existing Term Loans subject to such increase, (1b) ~~the final maturity~~ any Incremental Term C Loans made on an Increased Amount Date shall be ~~the same as the Maturity Date applicable to the Revolving Credit Facility,~~ designated (2x) ~~no amortization~~ a separate series of Term C Loans 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~~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 ~~Facility~~Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (~~1) other than with respect to any Extendable Bridge~~ such new or existing series of Term Loans, ~~the final maturity shall be no earlier than the Maturity Date applicable~~Term C Loans or Revolving Credit Commitments, each, a “Series”). (eb) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the ~~Increase Effective Date with respect to an increase to an existing Revolving Tranche~~satisfaction (or waiver) of the following terms and conditions, (x) ~~each~~ with respect to New Revolving Credit ~~Lender immediately prior to~~ Commitments, each of the Revolving Credit Lenders with an existing Revolving Credit Commitment of the Class being increased by such ~~increase will~~ New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each ~~Lender providing a portion of the increase to the~~ Revolving Credit ~~Commitments~~ Lender with a New Revolving Credit Commitment of such Class (each, a “New Revolving ~~Commitment Increase~~ Loan Lender”), and each of such New Revolving ~~Commitment Increase Lender will~~ Loan Lenders shall 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 purchased and assumed, (i) a portion of such Revolving Credit Lender’s participations hereunder in outstanding ~~L/C Obligations such that~~Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption ~~of participations~~and participation, the percentage of the aggregate outstanding participations hereunder in ~~L/C Obligations represented by~~ such Revolving ~~Commitment Increase~~ 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 ~~represented by such Revolving Commitment Increase Lender’s Revolving~~ under the Credit ~~Commitment~~ Facilities, and (yii) ~~if, on~~ at the ~~date of such increase, there are any Revolving Credit Loans outstanding~~principal amount thereof, such ~~Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase~~ interests in ~~Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ the Revolving Credit Loans ~~being prepaid~~ of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and ~~any costs incurred~~ assumptions, the Revolving Credit Loans of such Class will be held by ~~any Lender~~ existing Revolving Credit Lenders under such Class and New Revolving Loan Lenders under such Class ratably in accordance with ~~Section 3.06. The~~ 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 ~~the immediately preceding sentence. The additional Term Loans~~ 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 Loan”) and each loan made under an Additional Revolving Credit Commitment (each, an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Revolving Credit Lender with an Additional Revolving Credit Commitment (each, an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Revolving Credit Lender with respect to the applicable Incremental Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date (x) on which any Incremental Term Loan ~~Tranche~~ Commitments of any Series are effective, subject to the ~~increases~~ 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 ~~made~~ 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 ~~Lenders participating therein~~ 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 ~~the procedures~~ a Term Loan Increase or Term C Loan Increase shall be on terms and documentation set forth in ~~Sections 2.01 and 2.02 and on~~ the ~~date of~~ applicable Incremental Amendment as determined by the ~~making of such new~~ Borrower; provided that: (i) [reserved]; (ii) [reserved]; (iii) the Incremental Term Loans, Incremental Term Loan Commitments, Incremental Term C Loans and ~~notwithstanding anything to the contrary set forth~~ 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 ~~Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing~~ any voluntary prepayment of ~~outstanding~~ any Class of Term Loans ~~under such Term Loan Tranche~~ hereunder and may participate on a pro rata basis or less than pro rata basis (~~based~~ 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 ~~relative sizes~~ First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of ~~the various outstanding Borrowings~~Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), ~~so that~~(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; (iiv) ~~Any New Revolving Facility~~ the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and ~~New~~ amortization schedule applicable to any Incremental Term ~~Facility~~ 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 ~~other Facilities, not be Guaranteed by any Person that is not a Borrower or Guarantor under each~~ 2018 Incremental Loans as of the ~~other Facilities~~date of funding thereof exceeds the Yield in respect of the 2018 Incremental Term Loans by more than 0.50%, ~~and be unsecured~~ then the Applicable ABR Margin or ~~secured either on a pari passu basis with~~ the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Applicable Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving FacilitySOFR Margin, as applicable, ~~shall, for purposes~~ in respect of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing such 2018 Incremental Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary adjusted so that the ~~difference between the All-~~Yield in ~~Yield with~~ respect to of such ~~New Term Facility and the corresponding All-in Yield on the InitialTranche B~~ 2018 Incremental Term Loans is equal to ~~75 basis points~~the Yield in respect of such Incremental Term Loans or Incremental Term C Loans minus 0.50%; ~~provided that~~ provided, further, to the extent any change in the Yield of the 2018 Incremental Term Loans is necessitated by this clause (~~iii~~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, further, that the MFN Adjustment shall not apply to ~~any New~~ Incremental Term ~~Facility~~ Loans or Incremental Term C Loans (a) that mature on or after the twelve month anniversary of the 2018 Incremental Term Loan Maturity Date, (Ab) is 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) that are incurred in reliance on the Incremental Prepayment Basket, (e) that do not exceed an aggregate principal amount of the greatest of (~~together with any other such New Term Facility~~x) ~~equal to or less than~~ $~~100,000,000~~2,500,000,000, (By) ~~has~~ 50% of Consolidated EBITDA for the most recently ended Test Period (calculated on a ~~final maturity later than one year after~~ Pro Forma Basis) at the ~~Latest Maturity Date~~ time of incurrence and (z) 7.00% of Consolidated Total Assets as of the ~~then o~~last day of the most recently ended Test Period (calculated on

Appears in 1 contract

Sources: Credit Agreement (Vistra Corp.)

Incremental Facilities. ~~(a) The Borrowers may, from time to time after the Closing Date, upon notice by the Parent Borrower to the Person appointed by the Borrower to arrange an incremental Facility (such Person (who~~ (i) ~~may be~~ After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans), the Revolving Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request the establishment of (x) one or more (A) additional tranches of term 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 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 ~~it so agrees~~applicable), together with any Incremental Equivalent Debt secured by the Collateral on a pari passu basis with the Obligations, 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 ~~Person appointed~~ 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 ~~Parent Borrower~~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 ~~“Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof~~applicable Increased Amount Date, ~~request~~ provided that (i) ~~an increase~~ 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 ~~Commitments under~~ 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 ~~Tranche~~ 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 ~~same terms as~~Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, ~~and become part of, the Revolving Tranche proposed~~ commitment or other similar fees payable 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 revolving credit facilities to the Facilities, in each case, in such currency~~ arrangers (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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”their affiliates) in ~~an amount~~ connection therewith) shall not to exceed the sum of (x) the ~~greater of (A) $100,000,000 and (B) Consolidated EBITDA~~ Applicable Margin for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Revolving Loans made pursuant to the ~~terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien~~ Revolving Commitments that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based effect on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amountIncreased Amount Date, and (y) the ~~entire amount~~ 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 ~~increase~~ Incremental Term Loans denominated in any currency (except for any Incremental Tranche A Term Loans) is not at least one year later than the Final Term Loan Maturity Date of any Term Loans denominated in such currency, the interest rate margin in respect of such Incremental Term Loans denominated in such currency (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, ticking 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 denominated in such currency that ~~may~~ 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 denominated in such currency, which shall be ~~requested under this Section 2.14~~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 denominated in such currency shall be increased so that the interest rate margin in respect of such Incremental Term Loans denominated in such currency (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, ticking 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 denominated in such currency 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 denominated in such currency 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 ~~for purposes~~ the interest margin in respect of ~~any New Loan Commitments established pursuant to this Section 2.14 and New~~ such 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Synthetic L/C Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be ~~incurred under~~ increased by an additional 200 basis points in the ~~Ratio-Based Incremental Facility (to~~ form of an additional OID or upfront fees if reasonably necessary after increasing the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility (which, Applicable Margin for the ~~avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility,~~ Term Loans as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under set forth in this clause (Cvii), ~~and~~ and (Dviii) ~~solely for~~ the ~~purpose of calculating the Consolidated First Lien Net Leverage Ratio~~Incremental Revolving Commitments, the ~~Consolidated Senior Secured Net Leverage Ratio~~ Incremental Term Loan Commitments 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 (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, each Synthetic 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) Commitments 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facilityeffected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the 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 this ~~Section 2.14~~Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, 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. 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 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, (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 Increased Amount Date on which any Incremental Term Loan Commitments 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 Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, 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 Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the “Incremental 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 amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or ~~appropriate~~ appropriate, in the opinion of the Administrative Agent, to ~~give~~ effect ~~to such increase or new facility in accordance with its terms as set forth herein, including, for~~ the provisions of this Section 2.23. For the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans ~~and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based~~ constitute Incremental ~~Facility, the All-in Yield payable by the Borrowers applicable to such New~~ Term ~~Facility shall be determined by the Borrowers~~ Loans for all purposes of this Agreement and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other ~~such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o~~Loan Documents.

Appears in 1 contract

Sources: Credit Agreement (Avis Budget Group, Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (such Person (who may be (i) ~~may be~~ the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the ~~Parent~~ Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 loan facilities (including one or more delayed draw term loan facilities), in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”, together with any New Revolving Facility, Term Commitment Increase or Revolving Credit Commitment Increase, the “Incremental Facilities”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and such New Term Commitment, 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 of: (xi) the greater of (A1) $~~100,000,000~~ 300,000,000 and (B2) ~~Consolidated EBITDA for~~ 100.0% of LTM EBITDA, minus (ii) the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ 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 ~~after giving effect to~~ not redesignated as incurred under any ~~acquisition consummated concurrently therewith on a Pro Forma Basis and all~~ other ~~appropriate pro forma adjustment events consistent~~ provision of the Incremental Amount in accordance with ~~the definition of “Consolidated EBITDA” and Section 1.10~~this Agreement) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o,

Appears in 1 contract

Sources: Credit Agreement (Knife River Holding Co)

Incremental Facilities. (a) The Borrowers ~~may~~may (on a joint and several basis), from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower Representative to the ~~Person appointed by the Borrower to arrange an incremental Facility (such Person~~ Administrative Agent (who ~~(i)~~ shall promptly notify the applicable Lenders, which, for the avoidance of doubt, do not need to be all Lenders under any Tranche and may be ~~the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”~~new lenders not currently Lenders hereunder) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 ~~revolving credit~~ term loan 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice 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~~ Increase and the Term Commitment Increase, the “New Loan Commitments”) in by an amount not to exceed ~~the sum of~~ (x) a Dollar Amount equal to the greater of (A) $~~100,000,000~~ 700,000,000783,000,000 and (B) ~~Consolidated~~ 100% of the EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) Grower Amount (the “Cash---Capped Incremental Facility”), ) plus (y) an unlimited amount (the “Ratio---Based Incremental Facility”) so long as the Maximum First Lien Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied ~~and~~ plus (z) an amount equal to (~~i)(A~~i) (A) all voluntary prepayments of ~~(1)~~ Term Loans (including, for the avoidance of doubt, any New Term Loans that are pari passu in right of payment and security with the then-outstanding Term Loans) made pursuant to Section 2.05(a) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (~~B) all redemptions, repurchases and cancellations of ~~(1)~~ Term Loans (including, for the avoidance of doubt, any New Term Loans that are pari passu in right of payment and security with the then-outstanding Term Loans) made pursuant to the terms hereof (with credit given for the principal amount of the Loans so repurchased or canceled) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (~~ii~~) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii~~) 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 (~~excluding, for the avoidance of doubt, proceeds of~~ excluding any revolving credit ~~facility~~ facilities (including the Revolving Credit Facility)) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment---Based Incremental Facility”) (such ~~sum~~amounts described in clauses (x) through (z), at any such time, the “Incremental Amount”); provided that (i) no payment or bankruptcy Event of Default (subject to Section 1.02(i)) would exist after giving effect to any such request and (ii) any such request for an increase shall be in a minimum amount of the lesser of (x) a Dollar Amount of $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ 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:~~ 2.17, (A) at the Borrowers’ option, 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 ~~compliant~~ permitted by the pro forma calculation of the First Lien Net Leverage Ratiocompliant therewith) ), prior to utilization of the Prepayment-Based Incremental Facility and the Cash--Capped Incremental Facility and, and the Borrowers shall be deemed to have used the Prepayment-Based Incremental Facility prior to utilization of the Cash-Capped Incremental ~~Facility and the Prepayment-Based Incremental~~ Facility, (B) such New Loan Commitments pursuant to this Section 2.14 and such New Incremental Notes pursuant to Section ~~2.15~~ 2.17 may be incurred under ~~the~~ clauses (x), (y) and (z) abovethe Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence under clauses (x), (y) and (z) above may be utilized in a single transaction by byor series of related transactions by, at Borrowers’ option, first calculating the incurrence under ~~the Ratio- Based Incremental Facility~~ clause (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepaymenty)the Ratio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility, the Prepayment-Based Incremental Facility or any amounts substantially concurrently incurred under Section 7.03 (other than any Permitted Additional Debt) ~~and/or~~ and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to clause (x)the Cash-Capped Incremental Facility, ) and then calculating the incurrence under clausethe Cash-Capped Incremental Facility and (CxC) unless the Borrowers ~~may redesignate~~ elect otherwise, all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility ~~as having~~ shall automatically be deemed to have been incurred under the -135- Ratio-Based Incremental Facility ~~so long as, at~~ from and after the ~~time of such redesignation,~~ first date on which the Borrowers would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such 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 or and/or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at . At the time of ~~incurrence~~sending such notice to the applicable Lenders, ~~any cash proceeds~~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 ~~to participate in any New Loan Commitments~~ may elect or decline, in its sole discretion, to ~~participate in~~ 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, as applicable, 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, each L/C Issuer and the Swing Line Lender (~~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~~ consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed) to become Lenders pursuant to a joinder agreement to this ~~Agreement. Neither the Administrative Agent nor the Collateral Agent (~~Agreement in ~~their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14~~ form 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 Borrowers must provide~~ substance reasonably satisfactory to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestAgent. (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~~ Loan 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,~~ increase or New Term ~~Facility or New Revolving~~ Facility among the applicable Lenders. The ~~Incremental Arranger~~ Administrative Agent shall promptly notify the applicable Lenders of the final allocation of such ~~increase,~~ increase or New Term ~~Facility or New Revolving~~ Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term ~~Facility or New Revolving~~ Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the ~~Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)~~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, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date~~, in the case of an increase to an existing Term Loan Tranche~~, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in 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)~~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 (subject to Section 1.02(i), no Event of Default under Sections 8.01(a), (f) ~~in connection with any acquisition Investment, Restricted Payment~~ or ~~other transaction permitted pursuant to this Agreement as described in Section 1.02(i)~~(g) would exist immediately after giving effect to such increase; , (ii) ) (A) in the case of any increase of the Revolving ~~Tranche~~TrancheCredit Commitment Increase, (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) other than with respect to any Extendable Bridge Loans,~~ increase of a Term Loan Tranche,Commitment Increase 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 outstandingthe Term Loans, New TermB-4 Dollar Loans or Specified Refinancing Term Loans, as applicable, and (C) in the case of any New Term Facility, other than in the case of Extendable Bridge Loans/Interim Debt and amounts not in excess of the Inside Maturity Basket 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 that of any existingthe Term Loan TrancheB-4 Dollar Loans, (iii) except with respect to all-All-in yieldYield and as set forth in subclause (C) above with respect to final maturity and Weighted Average Life to Maturity, or otherwise as shallto the extent the terms and documentation of any such New Term Facility are not consistent with the Term B-4 Dollar Facility, any such New Term Facility shall either (x) reflect market terms and conditions (as determined by the Borrowers in good faith) at the time of incurrence of such New Term Facility or (y) be reasonably satisfactory to the Administrative Agent, any such New Term Facility (it being understood that no consent shall havebe required by the same terms asAdministrative Agent if any covenants or other provisions are only applicable after the then-Latest Maturity Date for the Term B-4 Dollar Facility) 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 and/or Section 6.16 with respect to Holdings, the Borrowers, all Material Subsidiary Guarantors and each other 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 Term Facility shall be agreed to by the Lenders providing such increase or New Term Facility, as applicable, and the Administrative Agent and the Borrowers; provided, further, in connection with the incurrence of any New Term Loans, if the proceeds of such New Term Loans 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 Acquisition, then (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) no Event of Default under Sections 8.01(a), (f) or (g) would exist immediately after giving effect to such incurrence (“Permitted Acquisition Provisions”). (e) On the Increase Effective Date with respect to ~~an increase to an existing~~ 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 the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C ~~Obligations~~ 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) participations hereunder in L/C ~~Obligations represented~~ Advances and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase ~~Lender~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oSect

Appears in 1 contract

Sources: Credit Agreement (Axalta Coating Systems Ltd.)

Incremental Facilities. (a) The ~~Borrowers~~ Parent Borrower may, from time to time after the Closing Date, upon notice by the Parent Borrower to the Administrative Agent and the Person appointed by the Parent Borrower to arrange an incremental Facility (each, an “Incremental Credit Facility”) (such Person (who may be (i) ~~may be~~ the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent ~~Borrower~~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 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 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o:

Appears in 1 contract

Sources: Refinancing Amendment and Second Amendment to Credit Agreement (MeridianLink, Inc.)

Incremental Facilities. (a) The Borrowers ~~may~~may (on a joint and several basis), from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower Representative to the ~~Person appointed by the Borrower to arrange an incremental Facility (such Person~~ Administrative Agent (who ~~(i)~~ shall promptly notify the applicable Lenders, which, for the avoidance of doubt, do not need to be all Lenders under any Tranche and may be ~~the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the “Incremental Arranger”~~new lenders not currently Lenders hereunder) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 ~~revolving credit~~ term loan 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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice 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~~ Increase and the Term Commitment Increase, the “New Loan Commitments”) in by an amount not to exceed ~~the sum of~~ (x) a Dollar Amount equal to the greater of (A) $~~100,000,000~~ 783,000,000 and (B) ~~Consolidated~~ 100% of the EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) Grower Amount (the “Cash-Capped Incremental Facility”), ) plus (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied ~~and~~ plus (z) an amount equal to (~~i)(A~~i) (A) all voluntary prepayments of ~~(1)~~ Term Loans (including, for the avoidance of doubt, any New Term Loans that are pari passu in right of payment and security with the then-outstanding Term Loans) made pursuant to Section 2.05(a) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (~~B) all redemptions, repurchases and cancellations of ~~(1)~~ Term Loans (including, for the avoidance of doubt, any New Term Loans that are pari passu in right of payment and security with the then-outstanding Term Loans) made pursuant to the terms hereof (with credit given for the principal amount of the Loans so repurchased or canceled) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (~~ii~~) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii~~) 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 (~~excluding, for the avoidance of doubt, proceeds of~~ excluding any revolving credit ~~facility~~ facilities (including the Revolving Credit Facility)) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such ~~sum~~amounts described in clauses (x) through (z), at any such time, the “Incremental Amount”); provided that (i) no payment or bankruptcy Event of Default (subject to Section 1.02(i)) would exist after giving effect to any such request and (ii) any such request for an increase shall be in a minimum amount of the lesser of (x) a Dollar Amount of $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ 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:~~ 2.17, (A) at the Borrowers’ option, the Borrowers shall be deemed to have used amounts under the ~~Prepayment~~Ratio-Based Incremental ~~Facility, if any~~Facility (to the extent compliant therewith), prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used the ~~Ratio~~Prepayment-Based Incremental Facility ~~(to the extent compliant therewith)~~ prior to utilization of the Cash-Capped Incremental ~~Facility and the Prepayment-Based Incremental~~ Facility, (B) such New Loan Commitments ~~pursuant to this Section 2.14~~ and such New Incremental Notes ~~pursuant to Section 2.15~~ may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by or series of related transactions by, at Borrowers’ option, first calculating the incurrence under the Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the PrepaymentRatio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility, the Prepayment-Based Incremental Facility or any amounts substantially concurrently incurred under Section 7.03 (other than any Permitted Additional Debt) ~~and/or~~ and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash-Capped Incremental Facility) and then calculating the incurrence under the Cash-Capped Incremental ~~Facility,~~ Facility and (C) unless the Borrowers ~~may redesignate~~ elect otherwise, all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility ~~as having~~ shall automatically be deemed to have been incurred under the Ratio-Based Incremental Facility ~~so long as, at~~ from and after the ~~time of such redesignation,~~ first date on which the Borrowers would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such 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 or and/or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at . At the time of ~~incurrence~~sending such notice to the applicable Lenders, ~~any cash proceeds~~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 ~~to participate in any New Loan Commitments~~ may elect or decline, in its sole discretion, to ~~participate in~~ 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, as applicable, 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, each L/C Issuer and the Swing Line Lender (~~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~~ consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed) to become Lenders pursuant to a joinder agreement to this ~~Agreement. Neither the Administrative Agent nor the Collateral Agent (~~Agreement in ~~their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14~~ form 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 Borrowers must provide~~ substance reasonably satisfactory to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestAgent. (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~~ Loan 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,~~ increase or New Term ~~Facility or New Revolving~~ Facility among the applicable Lenders. The ~~Incremental Arranger~~ Administrative Agent shall promptly notify the applicable Lenders of the final allocation of such ~~increase,~~ increase or New Term ~~Facility or New Revolving~~ Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term ~~Facility or New Revolving~~ Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the ~~Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)~~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, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date~~, in the case of an increase to an existing Term Loan Tranche~~, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in 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)~~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) subject to Section 1.02(i), no Event of Default under Sections 8.01(a), (~~subject to Section 1.02(i~~f) ~~in connection with any acquisition Investment, Restricted Payment~~ or ~~other transaction permitted pursuant to this Agreement as described in Section 1.02(i)~~(g) would exist immediately after giving effect to such increase; , (ii) ) (A) in the case of any ~~increase of the~~ Revolving ~~Tranche~~Credit Commitment Increase, (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) other than with respect to any Extendable Bridge Loans,~~ Term Commitment Increase 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, the Term B-5-6 Dollar Loans and (C) in the case of any New Term Facility, other than in the case of Extendable Bridge Loans/Interim Debt and amounts not in excess of the Inside Maturity Basket 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 that of the Term B-5-6 Dollar Loans, (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, to the extent the terms and documentation of any such New Term Facility are not consistent with the Term B-5-6 Dollar Facility, any such New Term Facility shall either (x) reflect market terms and conditions (as determined by the Borrowers in good faith) at the time of incurrence of such New Term Facility or (y) be reasonably satisfactory to the Administrative Agent (it being understood that no consent shall be required by the Administrative Agent if any covenants or other provisions are only applicable after the then-Latest Maturity Date for the Term B-5-6 Dollar Facility) 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 or delivered from time to time pursuant to Section 6.12 and/or Section 6.16 with respect to Holdings, the Borrowers, all Material Subsidiary Guarantors and each other 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 Term Facility shall be agreed to by the Lenders providing such increase or New Term Facility, as applicable, and the Administrative Agent and the Borrowers; provided, further, in connection with the incurrence of any New Term Loans, if the proceeds of such New Term Loans 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 Acquisition, then (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) no Event of Default under Sections 8.01(a), (f) or (g) would exist immediately after giving effect to such incurrence (“Permitted Acquisition Provisions”). (e) On the Increase Effective Date with respect to ~~an increase to an existing~~ 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 the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s participations hereunder in outstanding L/C ~~Obligations~~ 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) participations hereunder in L/C ~~Obligations represented~~ Advances and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase ~~Lender~~ Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), 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~~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 (A) rank pari passu in right of payment with the other Term Facilities, (B) not be Guaranteed by any ~~Person~~ Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor under each of the other Facilities, and be unsecured or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shallprovided that, for ~~purposes~~ the avoidance of ~~prepayments~~doubt, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oneed not be Guaranteed by all Loan Pa

Appears in 1 contract

Sources: Credit Agreement (Axalta Coating Systems Ltd.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower or any Guarantor may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to 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 Parent Borrower)~~Person, the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 (ivii) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment~~” and~~ ”) and/or (iii) an increase in the amount of the Revolving Credit Commitments (a “Revolving Commitment Increase”; and, together with the ~~Revolving Credit~~ Term Commitment ~~Increase,~~ Increase and the New ~~Revolving~~ Term Commitments ~~and the Term Commitment Increase,~~ the “New Loan Commitments”) ~~in an~~ 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”) (I) the greater of (A) $~~100,000,000~~ 325,000,000 and (B) 100% of Consolidated EBITDA ~~for~~ of the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ 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~~) (the “Cash-Capped Incremental Facility”~~), minus (II) Incremental Equivalent Cash Component Debt, plus (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to (~~i)(A~~1) 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 (~~1) Term Loans made~~ including pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) to the extent accompanied by a corresponding, permanent reduction 3.08 or any substantially similar provisions 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then ogoverning

Appears in 1 contract

Sources: Credit Agreement (V2X, Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the ~~Closing Date~~earlier of (i) the date on which the Delayed Draw Term Loans have been fully borrowed and (ii) the date on which the Delayed Draw Commitment has expired (unless, in the case of clause (w) below the Borrower terminates such Delayed Draw Commitment), upon notice by the ~~Parent~~ Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (such Person (~~who (i~~other than the Borrower or an Affiliate of the Borrower) ~~may be the Administrative Agent, if it so agrees, or (ii) any other Person~~ appointed by the ~~Parent Borrower)~~Borrower after consultation with the Blackstone Credit Representative, the “Incremental Arranger”) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (a “Revolving Credit Commitment Increase”); provided that the aggregate of all Revolving Credit Commitment Increases may not exceed $10,000,000 (which, for the avoidance of doubt, shall be part of, and not in addition to, the Cash-Capped Incremental Facility), (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 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 loan facilities, in each ~~case, in such currency or currencies as the Parent Borrower identifies in such notice~~ case (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 by an amount not to exceed the sum of (~~x) the greater of (A~~w) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) 25,000,000 (the “Cash-Capped Incremental Facility”)) provided, that the Blackstone Credit Representative shall be given the Right of First Refusal to provide such Cash-Capped Incremental Facility, (yx) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied ~~and~~ plus (zy) an amount equal to ~~(i)(A)~~ all voluntary prepayments of ~~(1)~~ pari passu Term Loans (including for the avoidance of doubt, any New Term Loans that are pari passu in right of payment and security with the Initial Term Loans) made pursuant to Section 2.05(a) and ~~(2) New Incremental Notes that are secured on a~~ repurchases of pari passu ~~basis with the Term Loans and (B) all repurchases of (1)~~ Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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~~ long-term Indebtedness (~~excluding~~other than, ~~for~~ to the ~~avoidance of doubt,~~ extent funded with the proceeds of ~~any revolving credit facility (including~~ the Revolving Credit ~~Facility)~~Loans or any other revolving facility) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such sum, at any such ~~time~~time and subject to Section 1.02(i), the “Incremental Amount”~~); provided that any such request for an increase shall be in a minimum amount~~ ) minus (z) the outstanding principal balance of all loans and all unfunded commitments constituting part of the ~~lesser~~ Incremental Equivalent Debt; provided, that the aggregate of ~~(x)~~ all Revolving Credit Commitment Increases may not exceed $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.1410,000,000; provided, further, that for purposes of any New Loan Commitments established pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt issued pursuant to Section 2.15: , (A) at the ~~Borrowers~~ Borrower’s option, the Borrower shall be deemed to have used amounts under the Ratio-Based Incremental Facility (to the extent permitted thereby) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and the Borrower shall be deemed to have used the Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt pursuant to Section 2.15 may be incurred under the Cash-Capped Incremental Facility, the Ratio-Based ~~Incremental Facility (to the extent compliant therewith), the Cash-Capped~~ Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility and the Prepayment-Based Incremental Facility may be utilized in a single transaction or series of related transactions by first calculating the incurrence under the ~~Ratio-~~ Ratio-Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the ~~Prepayment-~~Prepayment- Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ utilized pursuant to the Cash-Capped Incremental Facility) ~~and/or~~ and then calculating the incurrence under the Cash-Capped Incremental ~~Facility,~~ Facility and (C) the ~~Borrowers~~ Borrower may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped ~~Incremental Facility or the Prepayment-Based~~ Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the ~~Borrowers~~ 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~~ reducing the aggregate principal amount outstanding under the Cash-Capped Incremental Facility ~~or the Prepayment-Based Incremental Facility, as applicable,~~ by the amount of such redesignated Indebtedness)~~; provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end~~ . The Borrower may designate any Incremental Arranger of any ~~fiscal quarter,~~ New Loan Commitments with such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability titles under the ~~Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds~~New Loan Commitments as Borrower may deem appropriate. (b) Any Lender approached to participate in any New Loan Commitments or Revolving Credit Commitment Increase may elect or decline, in its sole discretion, to participate in such increase or new facility. The ~~Borrowers~~ 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~~Increase, with the consent of the Blackstone Credit Representative, the Ally Representative, Administrative ~~Agent,~~ Agent and 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~~ consent shall not be unreasonably ~~withheld, conditioned~~ 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~~effective (but a copy of such joinder shall be provided to the Administrative Agent); provided that, with respect to any New Loan Commitments, the ~~Borrowers~~ Borrower must provide to the Blackstone Credit Representative, the Ally Representative and the Administrative Agent ~~(x)~~ the documentation providing for such New Loan ~~Commitments and (y) a notice of~~ Commitments. Notwithstanding anything herein in the ~~identity of any new Lender; provided further~~contrary, ~~that such new Lender~~ no Other Affiliate shall ~~agree~~ be permitted to provide ~~applicable “know your customer”, anti-money laundering rules~~ any New Term Loan or New Term Commitment unless such Other Affiliate and ~~regulations, including~~ such Indebtedness is subject to the ~~Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request~~provisions of Section 10.07(i) as if such Indebtedness had been assigned to such Other Affiliate. (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 ~~Borrowers~~ Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such ~~increase,~~ increase or New Term ~~Facility or New Revolving~~ Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders and the Administrative Agent of the final allocation of such ~~increase,~~ increase or 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~~ Borrower, the Administrative Agent and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger and 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, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, ~~the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or~~ any ~~other~~ applicable amortization schedule for New Term Loans or Specified Refinancing Term ~~Loans)~~ Loans shall be amended in a writing (which may be executed and delivered by the ~~Borrowers~~ Borrower, the Administrative Agent and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger and the Administrative Agent to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility ~~or New Revolving Facility~~ pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist after giving effect to such ~~increase~~increase (except in connection with any acquisition or similar investment or Specified Change of Control transaction permitted under this Agreement, where no Event of Default under Section 8.01(a), (f) or (g) shall be the standard at the time of funding even in the case of the applicability of Section 1.02(i)); (ii) ) (A) in the case of any increase of the Revolving Tranche, ~~(1) the final maturity shall be~~ the same as terms and conditions, including the Maturity ~~Date applicable to the Revolving Credit Facility~~Date, ~~(2) no~~ amortization or mandatory commitment ~~reduction~~ reductions prior to the Maturity ~~Date applicable to the Revolving Credit Facility shall be required~~ Date, and ~~(3) the terms and documentation~~ documentation, applicable to the Revolving Credit Facility shall apply, (B) in the case of any ~~New Revolving Facility, (1) other than with respect to any Extendable Bridge Loans~~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 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 a, 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 (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 the then remaining Weighted Average Life to Maturity of any existing Term Loan Tranche; provided, that Extendable Bridge Loans/Interim Debt may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and, with respect to Extendable Bridge Loans/Interim Debt a, 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; (iii) except with respect to All-in Yield and as set forth in subclause (B) 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 shall have the same terms as the Term Facility, respectively; provided, that (x) to the extent such terms (excluding pricing, which shall include, for the avoidance of doubt, any “most favored nation” pricing provisions) are more favorable to the existing Lenders than comparable terms existing in the Loan Documents, such terms may be, in consultation with the Blackstone Credit Representative, the Ally Representative and 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 Incremental Arranger, the Blackstone Credit Representative, the Ally Representative and the Administrative Agent and (iv) to the extent reasonably requested by the Incremental Arranger or the Administrative Agent, 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 the Borrower and each material Guarantor that is organized in a jurisdiction for which counsel to the Blackstone Credit Representative, the Ally Representative or the Administrative Agent advises that such deliveries are reasonably necessary to preserve the Collateral in such jurisdiction (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Incremental Arranger). Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrower. (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender under such Revolving Tranche immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit ~~Lender~~▇▇▇▇▇▇’s participations hereunder in outstanding L/C Obligations relating to Letters of Credit issued (or arranged) under such Revolving Tranche 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~~ under such Revolving ~~Commitment Increase Lender~~ Tranche will equal the percentage of the aggregate Revolving Credit Commitments under such Revolving Tranche of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment under such Tranche and (y) if, on the date of such increase, there are any Revolving Credit Loans ~~outstanding~~outstanding under such Revolving Tranche, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans under such Revolving Tranche made hereunder so that the Revolving Credit Loans are thereafter held by the Revolving Credit Lenders according to their Pro Rata Shares (after giving effect to the increase in Revolving Commitments) (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oincreas

Appears in 1 contract

Sources: Credit Agreement (KLDiscovery Inc.)

Incremental Facilities. (a) The Borrowers may, from time to time after the Closing Date, upon notice by the ~~Parent Borrower~~ Borrowers to the Applicable Agent and the Person appointed by the ~~Borrower~~ Borrowers to arrange an incremental Facility (such Person (who (i) may be the ~~Administrative~~ Applicable Agent, if it so agrees, or (ii) any other Person appointed by the ~~Parent~~ Borrowers after consultation with the Applicable Agent; provided that such Person may not be an Affiliate of any Borrower), the “Incremental Arranger”) specifying the proposed ~~amount thereof~~ amount, proposed Borrowers (which shall be a Borrower hereunder) and ~~the proposed~~ currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 revolving credit facilities to the ~~Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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”) in by an amount not to exceed the sum of (x) the greater of (A1) the Dollar Amount of $~~100,000,000~~ 295,000,000 and (B2) Consolidated EBITDA of the Borrower Parties for the ~~most recently ended~~ four fiscal quarter period most recently then ended for which ~~internal~~ financial statements ~~are available~~ have been delivered pursuant to Section 6.01(a) or (~~and after giving effect to any acquisition consummated concurrently therewith~~ b), as applicable, calculated on a Pro Forma Basis ~~and all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.10)~~ for such period (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum First Lien Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to ~~(i)(A)~~ all voluntary prepayments of ~~(1)~~ pari passu Term Loans made pursuant to Section 2.05(a) and ~~(2) New Incremental Notes that are secured on a~~ repurchases of pari passu ~~basis with the Term Loans and (B) all repurchases of (1)~~ Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (~~excluding, for~~ other than to the ~~avoidance of doubt,~~ extent funded with the identifiable unused proceeds of ~~any revolving credit facility (including~~ a borrowing made pursuant to the ~~Revolving Credit Facility)~~Cash-Capped Incremental Facility within three months from the date of incurrence thereof) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount,~~ 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 ~~compliant therewith~~permitted by the pro forma calculation of the Consolidated First Lien Net Leverage Ratio) prior to utilization of the Cash-Capped ~~Incremental Facility and the Prepayment-Based~~ Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent ~~compliant therewith~~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 Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ 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/or~~ and then calculating the incurrence under the Cash-Capped Incremental ~~Facility,~~ Facility and (C) the ~~Borrowers~~ Borrower may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped ~~Incremental Facility or the Prepayment-Based~~ Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the ~~Borrowers~~ 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 ~~or the Prepayment-Based Incremental Facility, as applicable,~~ by the ~~amount~~ Dollar Amount of such redesignated Indebtedness)~~; provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end~~ . The Borrowers may designate any Incremental Arranger of any ~~fiscal quarter,~~ New Loan Commitments with such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability titles under the ~~Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds~~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,~~ Agent and 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~~ consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the ~~Administrative~~ 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 ~~Borrowers~~ Parent Borrower must provide to the ~~Administrative~~ Applicable Agent ~~(x)~~ reasonable prior written notice thereof and the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestCommitments. (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 ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect~~ herein pursuant to ~~any increase in the Applicable Rate relating to any existing Term~~ an Incremental Facility ~~to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term 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, (i) no Event of Default (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist after giving effect to such increase; (ii) ) (A) in the case of any increase of the Revolving Tranche, (1) the 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) ~~other than with respect to any Extendable Bridge Loans,~~ the final maturity shall be no earlier than the Maturity Date applicable to the Revolving Credit Facility and (2) no amortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required, (C) in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans or Specified Refinancing Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the longest remaining Weighted Average Life to Maturity of, any other outstanding Term Loans, New Term Loans or Specified Refinancing Term Loans, as applicable, and (D) 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 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, the conditions precedent to each such increase or New Loan Commitment shall be agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrowers. (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act ~~(except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired)~~ be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations ~~represented by such Revolving Commitment Increase Lender~~ will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving ~~Commitment Increase~~ Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), 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~~ Applicable 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~~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 or~~ unsecured, secured either on a ~~pari passu~~ first lien “equal and ratable” basis with the other Facilities or on a “junior” basis to with the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in ~~the case of any such junior secured New Revolving Facility or New Term Facility~~each case, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the ~~Incremental Arranger and~~Applicable Agent) but if unsecured or secured on a “junior” basis to the other Facilities, if such ~~Incremental Arranger is not the Administrative Agent, the Administrative Agent)~~New Revolving Facility or New Term Facility shall be documented in a separate agreement than this Agreement, (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, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oFacil

Appears in 1 contract

Sources: Credit Agreement (Atotech LTD)

Incremental Facilities. (a) ~~The Borrowers may~~Upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrower may from time to time ~~after the Closing Date, upon notice by the Parent Borrower to the Person appointed by the Borrower to arrange~~ add one or more new tranches of term loan facilities (each an ~~incremental Facility (such Person (who (i) may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower), the~~ “Incremental ~~Arranger~~Term Loan”) ~~specifying the proposed amount thereof and the proposed currency denomination thereof,~~ or request ~~(i)~~ an increase in the Aggregate Commitments ~~under any Revolving Tranche~~ (which ~~shall be on~~ increase may take the ~~same terms as~~form of an increase to the Revolving Credit Facility or to the Term Facility) (each an “Incremental Increase”; together with the Incremental Term Loans, and ~~become part of~~each, an “Incremental Facility”) by an amount (the ~~Revolving Tranche proposed to be increased) (a~~ “~~Revolving Credit Commitment Increase~~Incremental Amount”), 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 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 revolving credit facilities amount equal to the ~~Facilities~~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 permanent reductions of Revolving Credit Commitments made prior to the date of any applicable incurrence (other than, in each case, ~~in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Revolving Facility” and, any advance~~ prepayments 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, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the ~~Revolving Credit Commitment Increase~~proceeds of long term indebtedness), ~~the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) in an amount not to exceed the sum of (x) the greater of (A) $100,000,000 and~~ plus (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount ~~(the “Ratio-Based Incremental Facility”)~~ so long as as, in the ~~Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments~~ case of ~~(1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and~~ this clause (B), (x) ~~all repurchases~~ in the case of ~~(1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are~~ Indebtedness secured on a pari passu basis with the Term Loans, ~~(ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with~~ the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount Consolidated Senior Secured Net Leverage Ratio of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount Borrower and its Subsidiaries as of the ~~lesser~~ last day of ~~(x) $5,000,000 or~~the applicable Reference Period, in on a pro forma basis, does not exceed the ~~case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount~~Consolidated Senior Secured Net Leverage Incurrence Ratio, and (y) in the ~~entire amount~~ case of ~~any increase that may be requested under this Section 2.14~~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, ~~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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 Facilities may be incurred under both the ~~Ratio-Based Incremental Facility~~ preceding clauses (~~to the extent compliant therewith), the Cash-Capped Incremental Facility~~ A) and ~~the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized~~ (B) in a single transaction by first calculating the ~~incurrence~~ portion of the Indebtedness being incurred under ~~the Ratio- Based Incremental Facility~~ clause (B) (without ~~inclusion of any amounts substantially concurrently utilized pursuant~~ giving effect to the ~~Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility~~Indebtedness being incurred under clause (A)) and ~~then~~ second calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of the Indebtedness ~~originally designated as~~ being incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility clause (which, for the avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated IndebtednessA); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the such request for an Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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~~ a minimum amount of any New Revolving Facility, (1) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent)$25,000,000, (ii) the ~~New Term Facility or New Revolving Facility, as applicable, shall, for purposes~~ Borrower may make a maximum of ~~prepayments, be treated substantially~~ five such requests following the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oAmendment No. 1

Appears in 1 contract

Sources: Credit Agreement (Integra Lifesciences Holdings Corp)

Incremental Facilities. ~~(a) The Borrowers may, from time to time after the Closing Date, upon notice by the Parent Borrower to the Person appointed by the Borrower to arrange an incremental Facility (such Person (who~~ (i) ~~may be~~ After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request the establishment of (x) one or more (A) additional tranches of term 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 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 ~~it so agrees~~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 ~~Person appointed~~ 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 ~~Parent Borrower~~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 ~~“Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof~~applicable Increased Amount Date, ~~request~~ provided that (i) ~~an increase~~ 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 ~~Commitments under~~ 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 ~~Tranche~~ 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 ~~same terms as~~Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, ~~and become part of, the Revolving Tranche proposed~~ commitment or other similar fees payable 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 revolving credit facilities to the Facilities, in each case, in such currency~~ arrangers (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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”their affiliates) in ~~an amount~~ connection therewith) shall not to exceed the sum of (x) the ~~greater of (A) $100,000,000 and (B) Consolidated EBITDA~~ Applicable Margin for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Revolving Loans made pursuant to the ~~terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien~~ Revolving Commitments that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based effect on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amountIncreased Amount Date, and (y) the ~~entire amount~~ 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 ~~increase~~ 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 ~~may~~ 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 ~~requested under this Section 2.14~~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 ~~for purposes~~ the interest margin in respect of ~~any New Loan Commitments established pursuant to this Section 2.14 and New~~ such 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Synthetic L/C Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be ~~incurred under~~ increased by an additional 200 basis points in the ~~Ratio-Based Incremental Facility (to~~ form of an additional OID or upfront fees if reasonably necessary after increasing the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility (which, Applicable Margin for the ~~avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility,~~ Term Loans as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under set forth in this clause (Cvii), ~~and~~ and (Dviii) ~~solely for~~ the ~~purpose of calculating the Consolidated First Lien Net Leverage Ratio~~Incremental Revolving Commitments, the ~~Consolidated Senior Secured Net Leverage Ratio~~ Incremental Term Loan Commitments 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 (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, each Synthetic 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) Commitments 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facilityeffected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the 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 this ~~Section 2.14~~Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, 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. 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 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, (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 Increased Amount Date on which any Incremental Term Loan Commitments 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 Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, 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 Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the “Incremental 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 amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or ~~appropriate~~ appropriate, in the opinion of the Administrative Agent, to ~~give~~ effect ~~to such increase or new facility in accordance with its terms as set forth herein, including, for~~ the provisions of this Section 2.23. For the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Tranche A Term Loans ~~made under the Term Loan~~ constitute Incremental 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~~ A Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Tranche B Term Loans ~~or Revolving Credit~~ constitute Incremental Term Loans~~, as applicable)~~, and (iii) ~~with respect to any Dollar-denominated, floating rate New~~ the Tranche A Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility Lenders shall be ~~determined by the Borrowers~~ Incremental Term Loan Lenders, in each case, for all purposes of this Agreement and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other ~~such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o~~Loan Documents.

Appears in 1 contract

Sources: Credit Agreement (Avis Budget Group, Inc.)

Appears in 1 contract

Sources: Credit Agreement (E.W. SCRIPPS Co)

Incremental Facilities. (a) The ~~Borrowers~~ Parent and/or the Borrower may, from time to time after the Closing Date, upon notice by the Borrower and/or the Parent ~~Borrower~~ (as applicable) to the Person appointed by the Borrower and/or the Parent (as applicable) to arrange an incremental ~~Facility~~ facility (such Person (who may be (i) ~~may be~~ the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the ~~Parent Borrower),~~ Borrower the “Incremental Arranger”) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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~~ clauses (c) and (d) below or, subject to the terms of clause (f)(iii) below, with respect to ~~amortization~~any fees or original issue discount payable to the lenders providing such increase)) (each, a “Term Commitment Increase”), (~~iii~~ii) the addition of one or more new revolving credit facilities to the ~~Facilities~~Facility, 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 (iviii) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” ~~and~~ and, together with ~~the Revolving Credit Commitment Increase,~~ the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) in by an amount not to exceed (including any unused amount thereof, in the case of any proposed New Revolving Facility) the sum of (x) the greater of (A) $~~100,000,000~~ 100,000,000200,000,000 and (B) 100% of Four Quarter Consolidated EBITDA ~~for the most recently ended four fiscal quarter period for which internal financial statements are available~~ (~~and~~ after giving effect to any acquisition or Investment consummated ~~concurrently therewith~~ or to be consummated, including with the proceeds of any New Term Loan, New Revolving Loan or otherwise, on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section ~~1.10~~1.11) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of ~~(1)~~ Term Loans made pursuant to Section 2.05(a) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (~~B) all voluntary repurchases of ~~(1)~~ Term Loans made pursuant to the terms hereof ~~and (2) New Incremental Notes that are secured on a pari passu basis with~~ in an amount equal to the face amount of the Term ~~Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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)~~repurchased, in each case, to the extent not funded with the proceeds of long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit ~~facility (including the Revolving Credit Facility)~~facility) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) a Dollar Amount equal to $~~5,000,000 or,~~ 10,000,000 (in the case of ~~any~~ Term Commitment Increases or New ~~Loan Commitments denominated~~ Term Facilities) or a Dollar Amount equal to $5,000,000 (in ~~an Alternative Currency,~~ the ~~Alternative Currency Equivalent~~ case of ~~such amount,~~ New Revolving Facilities) 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~~ Equivalent Debt incurred pursuant to Section 2.15: , (A) unless the ~~Borrowers~~ Borrower or the Parent (as applicable) elects otherwise, the Borrower or the Parent (as applicable) shall be deemed to have used (x) amounts under ~~the Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used~~ the Ratio-Based Incremental Facility (to the extent ~~compliant therewith~~permitted by the pro forma calculation of the applicable ratio) prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility and (y) amounts under the Prepayment-Based Incremental Facility prior to the Cash-Capped Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt pursuant to Section 2.15 may be incurred under the Cash-Capped Incremental Facility, the Ratio-Based Incremental ~~Facility (to the extent compliant therewith)~~Facility, ~~the Cash-Capped Incremental Facility and~~ and/or the Prepayment-Based Incremental ~~Facility,~~ Facility and proceeds from any such incurrence under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility, and/or the Prepayment-Based Incremental Facility may be utilized in a single transaction by first calculating (x) the incurrence under the Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the PrepaymentRatio-Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ utilized ~~pursuant to~~ under the Cash-Capped Incremental Facility, the Prepayment-Based Incremental Facility and/or any amounts substantially concurrently incurred under Section 7.01 (other than any Ratio Debt incurred pursuant to Section 7.01 (including, pursuant to clause (o) ~~and/or~~ thereof)) and then calculating the incurrence under the Cash-Capped Incremental ~~Facility,~~ Facility and/or the Prepayment-Based Incremental Facility and (Cy) the ~~Borrowers may redesignate~~ incurrence under the Prepayment-Based Incremental Facility and then calculating the incurrence under the Cash-Capped Incremental Facility and (C)(i) all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility ~~as having been~~ shall automatically cease to be deemed incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility and shall instead be deemed incurred under the Ratio-Based Incremental Facility ~~so long as, at~~ from and after the ~~time of such redesignation,~~ first date on which the ~~Borrowers~~ Borrower or the Parent (as applicable) would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such 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 or and/or the Prepayment-Based Incremental Facility, as applicable, by the ~~amount~~ Dollar Amount of such redesignated Indebtedness~~); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause~~ ) and (C)ii) Parent may otherwise classify, and ~~(D) solely for the purpose~~ may later reclassify, all or any portion of ~~calculating the Consolidated First Lien Net Leverage Ratio~~Indebtedness as incurred as a Prepayment-Based Incremental Facility, ~~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 or Cash-Capped Incremental Facility on the ~~time~~ date of ~~incurrence,~~ incurrence and thereafter to the extent otherwise permitted on the date of such classification (or the date of any ~~cash proceeds~~such reclassification). Parent may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as the Borrower may deem appropriate. (b) 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~~ 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, 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, conditioned or delayed) Agent 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 ~~Borrowers~~ Borrower must provide to the Administrative Agent ~~(x)~~ the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestCommitments. (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 ~~Borrowers shall~~ Incremental Arranger and the Borrower or the Parent (as applicable)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~~ Borrower or the Parent (as applicable) and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche ~~or Revolving Tranche~~ and to reflect any technical changes ~~necessary~~ necessary, advisable or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for~~ herein pursuant to the ~~avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate~~ documentation 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~~ or New Revolving Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the ~~Borrowers~~ Borrower or the Parent (as applicable) and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to (x) add any call protection applicable to any existing Term Loan Tranche being increased and/or (y) 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 Specified Event of Default (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist immediately after giving effect to such increase; (ii) ) (A) in the case of any increase of ~~the Revolving~~ a Term Loan Tranche, ~~(1)~~ 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 unless the Term Lenders are also offered by the Borrower or the Parent (as applicable) the same amortization amounts for the corresponding year (provided that each Term Lender will be deemed to have rejected such offer unless such Term Lender notifies the Administrative Agent that it has accepted such offer by 11 a.m. five (5) Business Days (or such longer period which the Borrower or the Parent (as applicable) agrees) after the date of such offer; provided, (x) that Extendable Bridge Loans/Interim Debt may have a maturity date earlier than the Latest Maturity Date ~~applicable~~ of all then outstanding Term Loans and the Weighted Average Life to Maturity of Extendable Bridge Loans/Interim Debt may be shorter than the ~~Revolving Credit Facility, (2) no amortization or mandatory commitment reduction prior~~ then longest remaining Weighted Average Life to ~~the~~ Maturity ~~Date applicable to the Revolving Credit Facility shall be required~~ of any then outstanding Term Loans and (3y) the ~~terms~~ requirements in this clause (A) shall not apply to any Ratio-Based Incremental Facility and ~~documentation applicable to the Revolving Credit Facility shall apply,~~ (B) in the case of any New ~~Revolving~~ Term Facility, ~~(1)~~ other than ~~with respect to any~~ in the case of Extendable Bridge Loans/Interim Debt and any Ratio-Based Incremental Facility, ~~the~~ such New Term Facility shall have a final maturity ~~shall be~~ 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 unless the Term Lenders are also offered by the Borrower or the Parent (as applicable) the same amortization amounts for the corresponding year (provided that each Term Lender will be deemed to have rejected such offer unless such Term Lender notifies the Administrative Agent that it has accepted such offer by 11 a.m. five (5) Business Days (or such longer period which the Borrower or the Parent (as applicable) agrees) after the date of such offer and (iii) except as set forth in clause (f)(iii) below with respect to All-In Yield and with respect to final maturity and Weighted Average Life to Maturity, or otherwise agreed with the Incremental Arranger in the documentation relating to such New Term Facility or New Revolving Facility, any such New Term Facility shall have the same terms as any Term Facility and any New Revolving Facility shall have the same terms as any comparable term of any Term Facility; provided, that notwithstanding the foregoing, such terms may differ from the terms of any Term Facility so long as agreed between the Borrower or the Parent (as applicable) and the lenders providing such New Term Facility or New Revolving Facility and so long as such different terms (w) to the extent more favorable to the existing Lenders than comparable terms existing in the Loan Documents, as reasonably determined by Parent in consultation with the Administrative Agent are 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 Parent, 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, (x) are applicable only to periods after the Latest Maturity Date of the Term Facilities existing at the time of the incurrence of such indebtedness, (y) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by Parent in good faith) or (z) are reasonably satisfactory to the Borrower or the Parent (as applicable), the Incremental Arranger and the Administrative Agent. Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be solely those agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrower. (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so ~~that~~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~~ Subject to the Agreed Security Principles, 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 the Borrower or a Guarantor under each of the other Facilities, and be ~~unsecured or~~ unsecured, secured either on a ~~pari passu~~ first lien “equal and ratable” basis with the other Facilities or on a “junior” basis to with the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in each case, the ~~case~~ application of any proceeds of the Collateral securing such ~~junior secured~~ New Revolving Facility or New Term ~~Facility~~Facility shall, if documented in an agreement that is separate from this Agreement, be subject to an Acceptable Intercreditor Agreement), but if unsecured or secured on a “junior” basis to the other Facilities, such New Revolving Facility or New Term Facility shall be ~~subject to intercreditor arrangements~~ documented in an agreement that ~~are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger~~ is ~~not the Administrative Agent, the Administrative Agent)~~separate from this Agreement, (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~~ any Term ~~Facility or Revolving Credit~~ Facility~~, as the case may be~~, unless the ~~Borrowers~~ Borrower or the Parent (as applicable) otherwise ~~elect~~ elects (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then owi

Appears in 1 contract

Sources: Credit Agreement (Farfetch LTD)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (such Person (who may be (i) ~~may be~~ the Administrative Agent, if it so ~~agrees,~~ agrees or (ii) any other Person appointed by the ~~Parent Borrower~~Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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) the greater of (A) $~~100,000,000~~ 130,000,000 and (B) 75% of Four Quarter Consolidated ~~EBITDA for~~ EBITDA, minus the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ amount incurred prior to the date of incurrence thereof under the Second Lien Cash-Capped Incremental Amount (and ~~after giving effect to any acquisition consummated concurrently therewith on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent~~ not reclassified in accordance with the ~~definition~~ provisions of ~~“Consolidated EBITDA” and Section 1.10~~the Second Lien Credit Agreement) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of ~~(1)~~ pari passu Term Loans (including, for the avoidance of doubt, any New Term Loans that are pari passu in right of payment and security with the 2024 Specified Refinancing Term Loans) made pursuant to Section 2.05(a) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (~~B) all repurchases and/or cancellations of ~~(1)~~ pari passu Term Loans (including, for the avoidance of doubt, any New Term Loans) made pursuant to the terms hereof (in an amount equal to the face amount of the principal amount repurchased and/or cancelled) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (~~ii~~) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii~~) voluntary prepayments of Revolving Credit Loans (including, for the avoidance of doubt, any New Revolving 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such sum, at any such ~~time~~time and subject to Section 1.02(i), the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in ~~an Alternative Currency~~a foreign currency, the ~~Alternative Currency Equivalent of~~ equivalent principal amount thereof then outstanding in such ~~amount~~foreign currency, converted to Dollars in accordance with Section 1.08, 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~~ Equivalent Debt incurred pursuant to Section 2.15: : (A) At the ~~Borrowers~~ Borrower’s option, 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 Borrowers shall be deemed to have used~~ the Ratio-Based Incremental Facility (to the extent compliant therewith) ), prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility, and the Borrower shall be deemed to have used the Prepayment-Based Incremental Facility prior to utilization of the Cash-Capped Incremental ~~Facility and the Prepayment-Based Incremental~~ Facility, , (B) New Loan Commitments pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by or series of related transactions by, at the Borrower’s option, first calculating the incurrence under the ~~Ratio-~~ Ratio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility or any amounts substantially concurrently incurred under Section 7.01 (other than any Ratio Debt or Ratio Acquisitions Debt incurred pursuant to Section 7.01) and then calculating the incurrence under the Prepayment Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash Capped Incremental Facility) and then calculating the incurrence under the ~~Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the~~ Cash-Capped Incremental Facility~~) and/or the incurrence under the Cash-Capped Incremental Facility,~~ , (C) ~~the Borrowers may redesignate~~ all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility ~~as having been~~ shall automatically cease to be deemed incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility and shall instead be deemed incurred under the Ratio-Based Incremental Facility ~~so long as, at~~ from and after the ~~time of such redesignation,~~ first date on which the ~~Borrowers~~ Borrower would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such 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 or and/or the Prepayment-Based Incremental Facility, as applicable, by all or such portion, as applicable, of the aggregate principal amount of such ~~redesignated~~ Indebtedness)~~; provided~~, ~~that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and~~ and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash ~~proceeds~~proceeds incurred pursuant to this Section 2.14 and/or Incremental Equivalent Debt being incurred at such test date in calculating such Consolidated First Lien Net Leverage Ratio, Consolidated Senior Secured Net Leverage Ratio or Consolidated Total Net Leverage Ratio shall be excluded for purposes of calculating Adjusted Cash or Cash Equivalents. The Borrower may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as the Borrower may deem appropriate. (b) For the avoidance of doubt, the Borrower will not be obligated to approach any Lender to participate in any New Loan Commitments. Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The ~~Borrowers~~ 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,~~ Agent and 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~~ consent shall not be unreasonably withheld, ~~conditioned~~ delayed or ~~delayed~~conditioned) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as 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 ~~Borrowers~~ Borrower must provide to the Administrative Agent ~~(x)~~ the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestCommitments. (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~~ 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 ~~Borrowers~~ Borrower and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for~~ herein pursuant to the ~~avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate~~ documentation 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~~ or New Revolving Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the ~~Borrowers~~ 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, (i) no Event of Default (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist immediately 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) ~~other than with respect to any Extendable Bridge Loans,~~ the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase applicable to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment Facility and (y2) ~~if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on~~ no amortization or mandatory commitment reduction prior to the ~~Increase Effective~~ Maturity Date ~~be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ applicable to 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 Facility 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~~required, ~~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~~C) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans, Specified Refinancing Term Loans or Extended Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such ~~junior secured~~ 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 ~~Revolving Facility~~ Term Loans, Specified Refinancing Term Loans or Extended Term Loans, as applicable; provided, that Extendable Bridge Loans/Interim Debt may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and, with respect to Extendable Bridge Loans/Interim Debt, the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, and (D) in the case of any New Term Facility, other than in the case of Extendable Bridge Loans/Interim Debt, such New ~~Revolving~~ Term Facility or 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 ~~subject~~ no shorter than that of any existing Term Loan Tranche; (iii) except with respect to ~~intercreditor arrangements that are~~ the All-in Yield and as set forth in subclause (D) above with respect to final maturity and Weighted Average Life to Maturity, any such New Term Facility or New Revolving Facility shall have terms reasonably satisfactory to the Incremental ~~Arranger and, if such~~ Arranger; and (iv) to the extent reasonably requested by the Incremental Arranger ~~is not~~ and expressly set forth in the ~~Administrative Agent, the Administrative Agent), (ii) the~~ documentation relating to such New Term Facility or New Revolving Facility, the Incremental Arranger shall have received legal opinions, resolutions, officers’ certificates, reaffirmation agreements and/or subsequent ranking agreements or amendment agreements to, confirmations of and/or lower ranking Collateral Documents, as applicable, ~~shall~~consistent with those delivered on the Closing Date under Section 4.01 or delivered from time to time pursuant to Section 6.12, ~~for purposes~~ Section 6.14 and/or Section 6.16 with respect to Holdings, the Borrower and each material Subsidiary Guarantor (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of ~~prepayments~~opinion). Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be ~~treated substantially~~ solely those agreed to by the ~~same~~ Lenders providing such increase or New Loan Commitment, as applicable, and the Borrower. Notwithstanding the foregoing, (~~and in~~ x) to the extent any ~~event no more favorably than) the~~ terms of any Term Commitment Increase, Revolving Credit Commitment Increase, New Term Facility or New Revolving Facility are more favorable to the existing Lenders than comparable terms existing in the Loan Documents, such terms (if favorable to the existing Lenders) may be, in consultation with the Incremental Arranger, 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, the Borrower may, but shall not be required to, increase the Applicable Rate or amortization payments relating to any existing Term Facility to bring such Applicable Rate in line with the relevant Term Commitment Increase or New Term Facility to achieve fungibility with such existing Term Facility), (y) the terms of any New Revolving Facility shall be substantially identical to the Revolving Credit Facility, ~~as the case may be, unless the Borrowers otherwise elect~~ except for (~~but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii~~i) ~~with respect to any Dollar-denominated, floating rate New Term Facility~~ terms that ~~is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months~~ are applicable only after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the then Latest Maturity Date of the Revolving Credit Facility or (ii) such terms as may be included subject solely as to administrative matters and subject to the Administrative Agent’s consent (such consent not to be unreasonably withheld, delayed or conditioned) and (z) the terms of any New Term Facility or New Revolving Facility may be incorporated if otherwise reasonably satisfactory to the Borrower, the Incremental Arranger and the Administrative Agent. To the extent the Borrower establishes a New Revolving Facility, then othe Administrative Agent and the Borrower shall be permitted to amend this Agreement to require borrowings and repayments on a pro rata basis among Revolving Tranches (except for (A) payments of interest and fees at different rates on the Revolving Credit Commitments (and related outstandings), (B) r

Appears in 1 contract

Sources: First Lien Credit Agreement (ZoomInfo Technologies Inc.)

Incremental Facilities. (a) The ~~Borrowers may,~~ Borrower may from time to time on or after the Fourth Amendment Closing Date, ~~upon~~ by written notice ~~by the Parent Borrower~~ to ~~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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof~~, request (i) an increase in to the existing Revolving Commitments ~~under~~ (any such increase, the “New Revolving Commitments” and any Revolving ~~Tranche (which shall be on the same terms as, and become part of~~Loans thereunder, the “New Revolving ~~Tranche proposed to be increased~~Loans”) ~~(a “Revolving Credit Commitment Increase”),~~ and/or (ii) an increase ~~in any~~ to an existing Class of Term ~~Loan Tranche then outstanding (which shall be on~~ Loans and/or 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 establishment of one or more ~~new revolving credit facilities to~~ Term Loan Commitments hereunder (the ~~Facilities~~“New Term Loan Commitments,” and collectively with any New Revolving Commitments, ~~in each case~~the “New Commitments” and each, ~~in such currency or currencies as the Parent Borrower identifies in such notice (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 ~~Facility” and~~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 ~~advance made~~ 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 ~~Lender thereunder~~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, ~~a “New Revolving Loan”; and~~ however, that notwithstanding the ~~commitments thereof~~foregoing, the ~~“New Revolving Commitment”~~Borrower may, at any time following the Fourth Amendment Closing Date and on or prior to the earlier of (i) June 30, 2020 and (ivii) the ~~addition~~ Taurus Special Mandatory Prepayment request the establishment of one or more ~~new term loan facilities~~Term Loan Commitments hereunder (or, ~~in each case, in such currency or currencies as~~ if 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~~Administrative Agent so agree, an increase to the existing Tranche B-1 Term Loan Commitments) (such New Commitments, the “~~New~~ Taurus Term ~~Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New~~ Loan ~~Commitments~~Facility”) in an amount not to exceed $400,000,000 in the ~~sum~~ 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 ~~greater of~~ date (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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 each, an “~~Consolidated EBITDA” and Section 1.10) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility~~Increased Amount Date”) ~~so long~~ 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 ~~Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a~~Administrative Agent) and (2ii) ~~New Incremental Notes that are secured on a pari passu basis with~~ the ~~Term Loans and (B) all repurchases~~ identity of ~~(1) Term Loans made pursuant~~ each Lender or other Person reasonably acceptable to the ~~terms hereof and~~ Administrative Agent (2) such other Person, a “New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of Revolving Credit ~~Loans made pursuant to Section 2.05(a~~Lender” or “New Term Loan Lender,” as applicable, and collectively each a “New Lender” and together “New Lenders”) to whom 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or Borrower proposes any portion of ~~Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility~~ such New Revolving Commitments or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental FacilityNew Term Loan Commitments, as applicable, by be allocated and the ~~amount~~ amounts of such ~~redesignated Indebtedness)~~allocations; ~~provided,~~ provided that the Administrative Agent (and/or its Affiliates) may elect or decline to arrange such ~~Indebtedness shall be automatically redesignated to the extent that, at the end of~~ New Revolving Commitments or New Term Loan Commitments in its sole discretion and any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (b) Any Lender approached to ~~participate in any~~ provide all or a portion of the New Revolving Commitments or New Term 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~~ provide a ~~Revolving Credit Commitment Increase or~~ New Revolving ~~Facility~~Commitment or a New Term Loan Commitment; provided, ~~with the consent of the Administrative Agent~~further, ~~each L/C Issuer (in each case~~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 ~~the foregoing would be required to assign Revolving Credit Loans~~ such Increased Amount Date; provided, that (i) no Default or ~~Term Loans, as applicable,~~ Event of Default shall exist on such Increased Amount Date before or after giving effect to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent New Commitments (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, in connection with ~~respect~~ any Limited Conditionality Acquisition, it shall only be required that no Event of Default pursuant to ~~any New Loan Commitments~~Sections 8.1(a), ~~the Borrowers must provide~~ 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 ~~the Administrative Agent (x) the documentation providing for~~ such New ~~Loan Commitments and (y) a notice of the identity of any new Lender~~Commitments); provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) ~~a New Term Facility or New Revolving Facility is added~~ the representations and warranties set forth in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents ~~may~~ shall be ~~amended~~ 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 ~~writing~~ 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 (~~which may~~ 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 ~~Borrowers~~ Borrower, such New Lender, and the ~~Incremental Arranger~~ 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 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 ~~Lenders hereby authorize~~ 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 ~~Incremental Arranger to execute~~ New Revolving Commitments shall have no amortization and ~~deliver~~ the final maturity date of any such ~~documentation~~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 loan to the Borrower (each a “Term Loan”) in ~~order~~ an amount equal to ~~establish~~ 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 ~~Facility or New Revolving Facility or to effectuate~~ Loan Commitment of such series and the ~~increases~~ Term Loans of such series made pursuant thereto. The terms and provisions of any loans extended pursuant to the New Term Loan ~~Tranche or Revolving Tranche~~ 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 ~~reflect~~ 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 ~~technical changes necessary or appropriate~~ Term Loans funded under the New Term Loan Commitments (each, a “New Term Loan”) incurred pursuant to ~~give effect~~ clause (a) above shall rank pari passu 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 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, (y) such New Term Loans shall be subject to ~~such increase or new facility~~ a customary intercreditor agreement in ~~accordance with its terms as set forth herein, including,~~ form and substance reasonably satisfactory to the Administrative Agent and (z) for the avoidance of doubt, at if such New Term Loans rank junior in right of security with the ~~option~~ 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 B” facility primarily marketed to institutional investors shall be 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 ~~Parent Borrower,~~ existing Term Loans; (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 ~~increase~~ New Term Loan incurred pursuant to clause (a) above (other than any New Term 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, (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”) then the Applicable Rate ~~relating to any existing Term Facility to bring such Applicable Rate in line with~~ (or the ~~New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date,~~ “interest rate floor” as provided in the ~~case of an increase~~ following proviso) applicable to ~~an existing Term Loan Tranche, the amortization schedule for the Term Loan~~ such Tranche ~~then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New~~ B-1 Term Loans ~~or Specified Refinancing Term Loans)~~ shall be ~~amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any~~ increased such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist that after giving effect to such increase; , the Term Yield Differential shall not exceed 0.50% (~~ii) (A)~~ 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 determining whether an increase to the Applicable Rate under the Tranche B-1 Term Loans shall be required, but only to the extent 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 such case ~~of any increase of~~ the ~~Revolving Tranche,~~ interest rate floor (1but not the Applicable Rate) ~~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~~ Tranche B-1 Term Loans shall be increased to the ~~Maturity Date applicable to~~ extent of such differential between interest rate floors (this proviso, the ~~Revolving Credit Facility shall be required and (3) the terms and documentation applicable to the Revolving Credit Facility shall apply~~“MFN Protection”)); provided, ~~(B) in the case of any New Revolving Facility, (1) other than~~ however that with respect to any ~~Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with~~ New Term Loans in respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Taurus Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield ~~payable by the Borrowers applicable to~~ in respect of such ~~New~~ Taurus Term Loan Facility ~~shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall~~ may not ~~be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless~~ exceed the All-in Yield ~~with~~ in respect to of the ~~InitialTranche B~~ Tranche B-1 Term ~~Loans is increased to the amount necessary so that the difference between the~~ Loans, or, if it does exceed such All-in ~~Yield with respect~~ Yield, then the Applicable Rate (or the “interest rate floor” as provided in the following proviso) applicable to such ~~New Term Facility and the corresponding All-in Yield on the InitialTranche B~~ Tranche B-1 Term Loans shall be increased such that after giving effect to such increase, there is ~~equal to 75 basis points~~no Term Yield Differential; provided that ~~this clause~~ if such Taurus Term Loan Facility includes 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 determining whether an increase to the Applicable Rate under the Tranche B-1 Term Loans shall be required, but only to the extent 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 such case the interest rate floor (~~iii) shall~~ but not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the ~~Latest Maturity Date of the then o~~Ap

Appears in 1 contract

Sources: Credit Agreement (E.W. SCRIPPS Co)

Incremental Facilities. (a) The ~~Borrowers~~ Parent and/or the Borrower may, from time to time after the Closing Date, upon notice by the Borrower and/or the Parent ~~Borrower~~ (as applicable) to the Person appointed by the Borrower and/or the Parent (as applicable) to arrange an incremental ~~Facility~~ facility (such Person (who may be (i) ~~may be~~ the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the ~~Parent Borrower),~~ Borrower the “Incremental Arranger”) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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~~ clauses (c) and (d) below or, subject to the terms of clause (f)(iii) below, with respect to ~~amortization~~any fees or original issue discount payable to the lenders providing such increase)) (each, a “Term Commitment Increase”), (~~iii~~ii) the addition of one or more new revolving credit facilities to the ~~Facilities~~Facility, 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 (iviii) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” ~~and~~ and, together with ~~the Revolving Credit Commitment Increase,~~ the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”) in by an amount not to exceed (including any unused amount thereof, in the case of any proposed New Revolving Facility) the sum of (~~x) the~~ x)the greater of (A) $100,000,000 and (B) 100% of Four Quarter Consolidated EBITDA ~~for the most recently ended four fiscal quarter period for which internal financial statements are available~~ (~~and~~ after giving effect to any acquisition or Investment consummated ~~concurrently therewith~~ or to be consummated, including with the proceeds of any New Term Loan, New Revolving Loan or otherwise, on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section ~~1.10~~1.11) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of ~~(1)~~ Term Loans made pursuant to Section 2.05(a) and (~~2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (~~B) all voluntary repurchases of ~~(1)~~ Term Loans made pursuant to the terms hereof ~~and (2) New Incremental Notes that are secured on a pari passu basis with~~ in an amount equal to the face amount of the Term ~~Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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)~~repurchased, in each case, to the extent not funded with the proceeds of long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit ~~facility (including the Revolving Credit Facility)~~facility) ~~and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) a Dollar Amount equal to $~~5,000,000 or,~~ 10,000,000 (in the case of ~~any~~ Term Commitment Increases or New ~~Loan Commitments denominated~~ Term Facilities) or a Dollar Amount equal to $5,000,000 (in ~~an Alternative Currency,~~ the ~~Alternative Currency Equivalent~~ case of ~~such amount,~~ New Revolving Facilities) 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~~ Equivalent Debt incurred pursuant to Section 2.15: , (A) unless the ~~Borrowers~~ Borrower or the Parent (as applicable) elects otherwise, the Borrower or the Parent (as applicable) shall be deemed to have used (x) amounts under ~~the Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facility, and the Borrowers shall be deemed to have used~~ the Ratio-Based Incremental Facility (to the extent ~~compliant therewith~~permitted by the pro forma calculation of the applicable ratio) prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility and (y) amounts under the Prepayment-Based Incremental Facility prior to the Cash-Capped Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and ~~New~~ Incremental ~~Notes~~ Equivalent Debt pursuant to Section 2.15 may be incurred under the Cash-Capped Incremental Facility, the Ratio-Based Incremental ~~Facility (to the extent compliant therewith)~~Facility, ~~the Cash-Capped Incremental Facility and~~ and/or the Prepayment-Based Incremental ~~Facility,~~ Facility and proceeds from any such incurrence under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility, and/or the Prepayment-Based Incremental Facility may be utilized in a single transaction by first calculating (x) the incurrence under the Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the PrepaymentRatio-Based Incremental Facility (without inclusion of any amounts ~~substantially concurrently~~ utilized ~~pursuant to~~ under the Cash-Capped Incremental Facility, the Prepayment-Based Incremental Facility and/or any amounts substantially concurrently incurred under Section 7.01 (other than any Ratio Debt incurred pursuant to Section 7.01 (including, pursuant to clause (o) ~~and/or~~ thereof)) and then calculating the incurrence under the Cash-Capped Incremental ~~Facility,~~ Facility and/or the Prepayment-Based Incremental Facility and (Cy) the ~~Borrowers may redesignate~~ incurrence under the Prepayment-Based Incremental Facility and then calculating the incurrence under the Cash-Capped Incremental Facility and (C)(i) all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility ~~as having been~~ shall automatically cease to be deemed incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility and shall instead be deemed incurred under the Ratio-Based Incremental Facility ~~so long as, at~~ from and after the ~~time of such redesignation,~~ first date on which the ~~Borrowers~~ Borrower or the Parent (as applicable) would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such 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 or and/or the Prepayment-Based Incremental Facility, as applicable, by the ~~amount~~ Dollar Amount of such redesignated Indebtedness~~); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause~~ ) and (C)ii) Parent may otherwise classify, and ~~(D) solely for the purpose~~ may later reclassify, all or any portion of ~~calculating the Consolidated First Lien Net Leverage Ratio~~Indebtedness as incurred as a Prepayment-Based Incremental Facility, ~~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 or Cash-Capped Incremental Facility on the ~~time~~ date of ~~incurrence,~~ incurrence and thereafter to the extent otherwise permitted on the date of such classification (or the date of any ~~cash proceeds~~such reclassification). Parent may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as the Borrower may deem appropriate. (b) 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~~ 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, 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, conditioned or delayed) Agent 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 ~~Borrowers~~ Borrower must provide to the Administrative Agent ~~(x)~~ the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon requestCommitments. (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 ~~Borrowers shall~~ Incremental Arranger and the Borrower or the Parent (as applicable)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~~ Borrower or the Parent (as applicable) and the Incremental Arranger (and the Lenders hereby authorize ~~the~~ any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche ~~or Revolving Tranche~~ and to reflect any technical changes ~~necessary~~ necessary, advisable or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for~~ herein pursuant to the ~~avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate~~ documentation 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~~ or New Revolving Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the ~~Borrowers~~ Borrower or the Parent (as applicable) and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to (x) add any call protection applicable to any existing Term Loan Tranche being increased and/or (y) 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 Specified Event of Default (subject to Section 1.02(i~~) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i~~)) would exist immediately after giving effect to such increase; (ii) ) (A) in the case of any increase of ~~the Revolving~~ a Term Loan Tranche, ~~(1)~~ 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 unless the Term Lenders are also offered by the Borrower or the Parent (as applicable) the same amortization amounts for the corresponding year (provided that each Term Lender will be deemed to have rejected such offer unless such Term Lender notifies the Administrative Agent that it has accepted such offer by 11 a.m. five (5) Business Days (or such longer period which the Borrower or the Parent (as applicable) agrees) after the date of such offer; provided, (x) that Extendable Bridge Loans/Interim Debt may have a maturity date earlier than the Latest Maturity Date ~~applicable~~ of all then outstanding Term Loans and the Weighted Average Life to Maturity of Extendable Bridge Loans/Interim Debt may be shorter than the ~~Revolving Credit Facility, (2) no amortization or mandatory commitment reduction prior~~ then longest remaining Weighted Average Life to ~~the~~ Maturity ~~Date applicable to the Revolving Credit Facility shall be required~~ of any then outstanding Term Loans and (3y) the ~~terms~~ requirements in this clause (A) shall not apply to any Ratio-Based Incremental Facility and ~~documentation applicable to the Revolving Credit Facility shall apply,~~ (B) in the case of any New ~~Revolving~~ Term Facility, ~~(1)~~ other than ~~with respect to any~~ in the case of Extendable Bridge Loans/Interim Debt and any Ratio-Based Incremental Facility, ~~the~~ such New Term Facility shall have a final maturity ~~shall be~~ 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 unless the Term Lenders are also offered by the Borrower or the Parent (as applicable) the same amortization amounts for the corresponding year (provided that each Term Lender will be deemed to have rejected such offer unless such Term Lender notifies the Administrative Agent that it has accepted such offer by 11 a.m. five (5) Business Days (or such longer period which the Borrower or the Parent (as applicable) agrees) after the date of such offer and (iii) except as set forth in clause (f)(iii) below with respect to All-In Yield and with respect to final maturity and Weighted Average Life to Maturity, or otherwise agreed with the Incremental Arranger in the documentation relating to such New Term Facility or New Revolving Facility, any such New Term Facility shall have the same terms as any Term Facility and any New Revolving Facility shall have the same terms as any comparable term of any Term Facility; provided, that notwithstanding the foregoing, such terms may differ from the terms of any Term Facility so long as agreed between the Borrower or the Parent (as applicable) and the lenders providing such New Term Facility or New Revolving Facility and so long as such different terms (w) to the extent more favorable to the existing Lenders than comparable terms existing in the Loan Documents, as reasonably determined by Parent in consultation with the Administrative Agent are 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 Parent, 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, (x) are applicable only to periods after the Latest Maturity Date of the Term Facilities existing at the time of the incurrence of such indebtedness, (y) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by Parent in good faith) or (z) are reasonably satisfactory to the Borrower or the Parent (as applicable), the Incremental Arranger and the Administrative Agent. Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be solely those agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrower. (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so ~~that~~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~~ Subject to the Agreed Security Principles, 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 the Borrower or a Guarantor under each of the other Facilities, and be ~~unsecured or~~ unsecured, secured either on a ~~pari passu~~ first lien “equal and ratable” basis with the other Facilities or on a “junior” basis to with the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in each case, the ~~case~~ application of any proceeds of the Collateral securing such ~~junior secured~~ New Revolving Facility or New Term ~~Facility~~Facility shall, if documented in an agreement that is separate from this Agreement, be subject to an Acceptable Intercreditor Agreement), but if unsecured or secured on a “junior” basis to the other Facilities, such New Revolving Facility or New Term Facility shall be ~~subject to intercreditor arrangements~~ documented in an agreement that ~~are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger~~ is ~~not the Administrative Agent, the Administrative Agent)~~separate from this Agreement, (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~~ any Term ~~Facility or Revolving Credit~~ Facility~~, as the case may be~~, unless the ~~Borrowers~~ Borrower or the Parent (as applicable) otherwise ~~elect~~ elects (but in any event no more favorably than the existing Term Loans ~~or Revolving Credit Loans, as applicable), and (iii)~~ with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then ot

Appears in 1 contract

Sources: Credit Agreement (Farfetch LTD)

Incremental Facilities. ~~(a)~~ The ~~Borrowers may, from time~~ Borrower Representative may by written notice to the Administrative Agent at any time after the ~~Closing~~ RestatementSecond Amendment Date elect to request (A) prior to the Revolving Commitment Termination Date, ~~upon notice by the Parent Borrower~~ an increase to the ~~Person appointed by the Borrower to arrange an incremental Facility~~ existing Revolving Commitments (any such ~~Person (who (i) may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower)~~increase, the “Incremental ~~Arranger~~Revolving Commitments”) ~~specifying the proposed amount thereof and the proposed currency denomination thereof, request~~ and/or (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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”), (iiiB) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (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 establishment of one or more new term loan ~~facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ commitments (~~each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof,~~ the “~~New~~ Incremental Term ~~Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New~~ Loan Commitments”~~) in~~ ), by an aggregate amount not to exceed (1) the sum of (x) ~~the greater of (A)~~ $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), 1,350,000,000 plus (y) ~~an unlimited~~ the aggregate amount ~~(the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A)~~ of all voluntary prepayments of ~~(1)~~ Term Loans ~~made~~ and Revolving Loans pursuant to Section ~~2.05(a~~2.13(a) (to the extent, in the case of voluntary prepayments of Revolving Loans, there is an equivalent permanent reduction of the Revolving Commitments pursuant to Section 2.13(b)), plus (z) the aggregate amount of Revolving Commitments of any Lender that was a Defaulting Lender that have been terminated, plus (2) an additional unlimited amount so long as, after giving pro forma effect to the incurrence of such Incremental Revolving Commitments and/or Incremental Term Loan Commitments and the consummation of any Investment or acquisition, repayment of any Indebtedness or payment or making of any Restricted Payment with the Net Cash Proceeds thereof (assuming a borrowing of the maximum amount of Loans available thereunder, but otherwise excluding the Net Cash Proceeds of any such Incremental Term Loan Commitments or Incremental Revolving Commitments), the Senior Secured Net Leverage Ratio would not exceed 3.00:1.00, and, in each case, not less than $25,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the maximum amount then permitted to be incurred pursuant to clauses (1) and (2) ~~New~~ above on such date of determination), and integral multiples of $10,000,000 in excess of that amount (it being understood, notwithstanding anything to the contrary set forth herein or in any other Loan Document, that in no event shall the Second Amendment Incremental ~~Notes that are secured on a pari passu basis with the~~ Tranche A Term Loans count against or otherwise reduce the amount set forth in sub-clause (1)(x) above, and that the incurrence of the Second Amendment Incremental Tranche A Term Loans shall be deemed permitted by the terms of this Agreement). Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower Representative proposes that the Incremental Revolving Commitments or Incremental Term Loan Commitments, 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 Administrative Agent and (B) ~~all repurchases~~ the identity of ~~(1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all~~ each Lender or other ~~Indebtedness secured by a Lien~~ Person that is ~~pari passu with the Liens securing the Obligations and~~ an Eligible Assignee (~~iii) voluntary prepayments of~~ each, an “Incremental Revolving ~~Credit Loans made pursuant to Section 2.05(a~~Loan Lender” or “Incremental Term Loan Lender”, as applicable) to whom 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or Borrower Representative proposes any portion of ~~Indebtedness originally designated as incurred under the Cash-Capped~~ such Incremental ~~Facility~~ Revolving Commitments or ~~the Prepayment-Based~~ Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental FacilityTerm Loan Commitments, as applicable, by be allocated and the ~~amount~~ amounts of such ~~redesignated Indebtedness)~~allocations; ~~provided,~~ provided that the Administrative Agent may elect or decline to arrange such ~~Indebtedness shall be automatically redesignated to the extent that, at the end of~~ Incremental Revolving Commitments or Incremental Term Loan Commitments in its sole discretion and any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (b) Any Lender approached to ~~participate in any New~~ provide all or a portion of the Incremental Revolving Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to ~~participate in~~ provide an Incremental Revolving Commitment or an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as of such ~~increase~~ Increased Amount Date; provided that: (1) no Default or ~~new facility. The Borrowers may also invite additional Eligible Assignees reasonably satisfactory~~ Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (2) both before and after giving effect to the incurrence of such Incremental ~~Arranger and~~Revolving Commitments and/or Incremental Term Loan Commitments, ~~solely~~ each of the conditions set forth in Section 3.02 shall be satisfied; (3) the U.S. Borrower shall be in pro forma compliance with each of the covenants set forth in Section 6.07 as of the last day of the most recently ended Fiscal Quarter after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, and the consummation of any Investment or acquisition, repayment of any Indebtedness or payment or making of any Restricted Payment with the Net Cash Proceeds thereof (assuming a borrowing of the maximum amount of Loans available thereunder, but otherwise excluding the Net Cash Proceeds of any such Incremental Term Loan Commitments or Incremental Revolving Commitments); (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the applicable Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Revolving Commitments; (6) the applicable Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) as reasonably requested by the Administrative Agent in connection with any such transaction; and (7) the applicable Borrower shall have paid all fees and expenses owing to the Agents and the Lenders in respect of such Incremental Revolving Commitments or Incremental Term Loan Commitments; provided that, to the extent the proceeds of any Incremental Term Loans are being used to finance a ~~Revolving Credit Commitment Increase~~ Permitted Acquisition or ~~New Revolving Facility~~other Investment permitted hereunder, with the consent of the Borrower Representative and the applicable Incremental Term Loan Lender(s), clauses (1) and (2) above shall not apply so long as on the date of the incurrence of such Incremental Term Loans, the Specified Representations shall be true and correct in all material respects as of the date of such incurrence except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date; (it being understood that to the extent any such representation and warranty is already qualified by materiality or material adverse effect, such representation and warranty will be true and correct in all respects). Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement. 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 of the same Class shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of such Lenders, at the principal amount thereof (together with accrued interest), such interests in the applicable 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 Lenders with Revolving Commitments of the same Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments of the applicable Class, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment of the applicable Class and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan of the applicable Class and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. In addition, each Revolving Loan Lender agrees that the Administrative Agent may (subject to the consent of the Borrower Representative) take such additional actions as it deems reasonably necessary to effect the foregoing and such other adjustments to ensure that the U.S. Revolving Exposure, European Revolving Exposure, or Canadian Revolving Exposure, as applicable, is allocated ratably in accordance with the applicable Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments. On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of any Series shall make a Loan to the U.S. 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. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower Representative’s notice of each Increased Amount Date and in respect thereof (x) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series, as applicable and (y) in the case of each notice to any applicable Lender with Revolving Commitments, the respective interests in such Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section 2.24. The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, identical to the Tranche BA Term Loans. The terms and provisions of the Incremental Revolving Loans shall be identical to the Revolving Loans of the same Class. In the case of any Incremental Term Loans, (i) the Weighted Average Life to Maturity of all Incremental Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the Tranche BA Terms Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the final maturity of the Tranche BA Term Loans, and (iii) the yield and all other terms applicable to the Incremental Term Loans of each Series shall be determined by the Borrower Representative and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to the Incremental Term Loans of any Series (after giving effect to all rate floors and all fees or original issue discount payable to all Incremental Term Loan Lenders with respect to such Incremental Term Loans) made within 126 months after the RestatementSecond Amendment Date, as reasonably determined by the Administrative Agent, ~~each L/C Issuer~~ shall not be greater than the applicable interest rate (~~in each case,~~ including the Applicable Margin and rate floor) payable pursuant to the ~~extent~~ terms of this Agreement as amended through the date of such calculation with respect to the Tranche BA Term Loans, plus 0.50% per annum unless (i) the interest rate with respect to the Tranche BA Term Loans is increased so as to cause the then applicable interest rate under this Agreement on the Tranche BA Term Loans to be not more than 0.50% less than the yield then applicable to the Incremental Term Loans of such Series (after giving effect to all rate floors and all fees or original issue discount payable to all Incremental Term Loan Lenders with respect to such Incremental Term Loans) and (ii) the interest rate with respect to Tranche A Term Loans is increased by an amount equal to the amount of any increase in the interest rate for Tranche B Term Loans pursuant to clause (i). Any Incremental Revolving Loans will be documented solely as an increase to the Revolving Commitments of the same Class without any change in terms, other than any change that is more favorable to the Revolving Lenders and applies equally to all Revolving Loans and Revolving Commitments of the same Class. Each Joinder Agreement may, without the consent of any of Lender other than the ~~foregoing would be required to assign~~ applicable Incremental Revolving ~~Credit Loans~~ Loan Lender or Term Loans, as applicable, to such Eligible Assignee, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Incremental 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~~Lender, ~~the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of~~ effect 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 amendments to ~~this Section 2.14,~~ this Agreement and the other Loan Documents as may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Dateappropriate, in the ~~case~~ opinion of ~~an increase~~ the Administrative Agent to ~~an existing Term Loan Tranche,~~ effect the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments provisions of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o2.24.

Appears in 1 contract

Sources: Credit Agreement (PVH Corp. /De/)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (each, an "Incremental Credit Facility") (such Person (who may be (i) ~~may be~~ 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 “Incremental Arranger”) specifying~~ the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 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 loan facilities, in each case, in such currency or currencies as the ~~Parent~~ Borrower identifies in such notice (each, a “"New Term Facility”"; and any advance made by a Lender thereunder, a “"New Term Loan”"; and the commitments thereof, the “"New Term 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 of: (xi) the greater of (A) $~~100,000,000~~ 204,000,000 and (B) 100.0% of Four Quarter Consolidated EBITDA ~~for~~ plus (ii) the ~~most recently ended four fiscal quarter period for which internal financial statements are available~~ aggregate amount of Indebtedness permitted to be incurred pursuant to Section 7.01(l) and, if such Indebtedness is secured, clause (~~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~~ 25) of the definition of ~~“Consolidated EBITDA”~~ 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 ~~1.10~~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”"), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o,

Appears in 1 contract

Sources: Credit Agreement (Instructure Holdings, Inc.)

Incremental Facilities. (a) The ~~Borrowers~~ Borrower may, from time to time after the Closing Date, upon notice by the ~~Parent~~ Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (such Person (who may be (i) ~~may be~~ the Administrative ~~Agent, if it so agrees,~~ Agent or (ii) any other Person appointed by the ~~Parent Borrower~~Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed amount ~~thereof and the proposed currency denomination~~ thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (a “Revolving Credit Commitment Increase”), (ii) an increase in any Term Loan ~~Tranche~~ tranche then outstanding (which shall be on the same terms as, and become part of, the Term Loan ~~Tranche~~ tranche proposed to be increased hereunder (except as otherwise provided in clause (d) below with respect to amortization)) PRIVATE & CONFIDENTIAL SUBJECT TO FRE 408 & ITS EQUIVALENTS (each, a “Term Commitment Increase”), or (iii) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (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 (ivii) the addition of one or more new term loan ~~facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ 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”) in an amount not to exceed the sum of (x) the greater of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), ~~(y)~~ in each case, in an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage ~~/ Minimum Interest Coverage~~ Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”)satisfied; provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $~~5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount~~5,000,000, and (y) the entire amount of any increase that may be requested under this Section ~~2.14~~2.16; 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:~~ 2.16: (Ai) 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility [reserved]; (~~to the extent compliant therewith~~ii) ~~prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility,~~ [reserved]; (Biii) ~~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~~ [reserved]; and (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (Div) 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~~proceeds received pursuant to this Section 2.16 shall be excluded for purposes of calculating cash or Cash Equivalents. The Borrower may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as the Borrower may deem appropriate. (b) For the avoidance of doubt, the Borrower will not be obligated to approach any Lender to participate in any New Loan Commitments. Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The ~~Borrowers~~ Borrower may also invite additional Eligible Assignees (other than any Affiliate of the Borrower) reasonably satisfactory to the Incremental Arranger ~~and, solely in connection with a Revolving Credit Commitment Increase or New Revolving Facility, with the consent of~~ and the Administrative Agent, 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, conditioned or delayed) Agent to become Lenders pursuant to ~~a joinder agreement~~ an amendment 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a ~~Revolving Tranche or a~~ Term Loan ~~Tranche~~ tranche is increased in accordance with this Section ~~2.14~~ 2.16 or (ii) a New Term Facility ~~or New Revolving Facility~~ is added in accordance with this Section ~~2.14~~2.16, the ~~Borrowers~~ Incremental Arranger and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such ~~increase,~~ increase or 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,~~ increase or 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~~ tranche or (ii) any addition of a New Term ~~Facility or New Revolving~~ Facility, in each case, pursuant to this Section ~~2.14~~2.16, this Agreement and the other Loan Documents ~~may~~ shall be amended in a writing (which ~~may~~ shall be executed and delivered by the ~~Borrowers and~~ Borrower, the Administrative Agent, the Incremental Arranger (and the Lenders ~~hereby authorize the any~~ providing such ~~Incremental Arranger to execute and deliver any such documentation)~~Term Loan Increase or New Loan Commitment) 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~~ tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth ~~herein, including, for~~ herein pursuant to the ~~avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate~~ documentation relating to ~~any existing Term Facility to bring~~ such ~~Applicable Rate in line with the~~ New ~~Term Facility to achieve fungibility with such existing~~ Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan ~~Tranche~~tranche, the amortization schedule for the Term Loan ~~Tranche~~ tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term ~~Loans or Specified Refinancing Term~~ Loans) shall be amended in writing (which ~~may~~ shall be executed and delivered by the ~~Borrowers and~~ Borrower, the Administrative Agent, the Incremental Arranger (and the Lenders ~~hereby authorize any~~ providing such ~~Incremental Arranger to execute and deliver any such documentation)~~Term Loan Increase or New Loan Commitment) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan ~~Tranche~~ 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.. PRIVATE & CONFIDENTIAL SUBJECT TO FRE 408 & ITS EQUIVALENTS (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~~2.16, (i) no Event of Default ~~(subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i))~~ would exist after giving effect to such ~~increase~~increase (except in connection with any acquisition or similar Investment permitted hereunder, where no Event of Default under Sections 8.01(a), (f) or (g) shall be the standard); (ii) ) (A) in the case of any increase of ~~the Revolving Tranche~~a Term Loan tranche, ~~(1)~~ the final maturity of the Term Loans or New Term Loans increased pursuant to this Section shall be no earlier than the ~~same as 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 or New Term Loans, as 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~~ Term Facility, ~~(1) other than with respect to any Extendable Bridge Loans, the~~ such New Term Facility shall have a final maturity ~~shall be~~ 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 as set forth in clause (f) below and in subclauses (A) and (B) above with respect to final maturity and Weighted Average Life to Maturity, any such New Term Facility shall have terms reasonably satisfactory to the Incremental Arranger and the Administrative Agent; and (iv) to the extent reasonably requested by the Incremental Arranger or the Administrative Agent, the Incremental Arranger and Administrative Agent shall have received legal opinions, resolutions, officers’ certificates, solvency 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 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). Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be solely those agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, the Administrative Agent and the Borrower. Notwithstanding the foregoing, (x) to the extent any terms of any Term Commitment Increase or New Term Facility are more favorable to the existing Lenders than comparable terms existing in the Loan Documents, such terms (if favorable to the existing Lenders) shall be, 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 consent requirements (including, for the avoidance of doubt, at the option of the Borrower, the Borrower may, but shall not be required to, increase the Applicable Rate or amortization payments relating to any existing Facility to bring such Applicable Rate in line with the relevant Term Commitment Increase or New Term Facility to achieve fungibility with such existing Facility), and (y) the terms of any New Term Facility may be incorporated if otherwise reasonably satisfactory to the Borrower, the Incremental Arranger and the Administrative Agent. (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan ~~Tranche~~ 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~~ additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such ~~new~~ additional Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan ~~Tranche~~ tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so ~~that~~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 (a) shall rank pari passu in right of payment and security with the ~~other Facilities~~Term Loan Facility, (b) shall not be Guaranteed by any Person that is not a Borrower or Guarantor under ~~each of~~ the Term Loan Facility or have any other ~~Facilities~~obligors other than a Borrower or Guarantor under the Term Loan Facility, (c) shall not be secured by a Lien on any property or assets that does not secure the Term Loan Facility, and ~~be unsecured or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same~~ (~~or less~~d) ~~Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility~~ shall be subject to ~~intercreditor arrangements that are reasonably satisfactory to~~ the ~~Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent)~~Pari Passu Intercreditor Agreement, (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~~ Loan Facility, ~~as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and~~ (iii) any New Term Facility shall share ratably PRIVATE & CONFIDENTIAL SUBJECT TO FRE 408 & ITS EQUIVALENTS (or on a lesser basis) with respect to any ~~Dollar-denominated~~mandatory prepayments of the Term Loan Facility (other than mandatory prepayments resulting from a refinancing of any Term Loan Facility, ~~floating rate~~ which may be applied exclusively to the Term Loan Facility being refinanced) and (iv) with respect to any such New Term Facility that ~~is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and~~ is incurred on or prior to the date that is 12 twelve (12) months after the Closing ~~Date and under the Ratio-Based Incremental Facility~~Date, the All-in Yield payable by the ~~Borrowers~~ Borrower applicable to such New Term Facility shall be determined by the ~~Borrowers~~ Borrower and the Lenders providing such New Term Facility and shall not be more than 75 50 basis points higher than the corresponding All-in Yield payable by the ~~Borrowers~~ Borrower for the ~~InitialTranche B~~ Initial Term Loans, unless the All-in Yield with respect to the ~~InitialTranche B~~ Initial Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the ~~InitialTranche B~~ Initial Term Loans is equal to 75 50 basis ~~points; provided that~~ points (this clause (~~iii~~iv), the “MFN Provision”). (g) If the Incremental Arranger is not the Administrative Agent, the actions authorized to be taken by the Incremental Arranger herein shall ~~not apply~~ be done in 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 2.16 (including amendments to this Agreement and the other Loan Documents), any comments to such documentation reasonably requested by the Administrative Agent shall be reflected therein. (h) To the extent any New Term Facility ~~that (A) is~~ shall be denominated in ~~an aggregate principal amount (together with any~~ a currency other than Dollars, this Agreement and the other Loan Documents shall be amended to the extent necessary or appropriate to provide for the administrative and operational provisions applicable to such ~~New Term Facility) equal~~ currency, in each case as are reasonably satisfactory to ~~or less than $100,000,000, (B) has a final maturity later than one year after~~ the ~~Latest Maturity Date of the then o~~Administrative Agent.

Appears in 1 contract

Sources: Term Loan Credit Agreement (CommScope Holding Company, Inc.)

Incremental Facilities. ~~(a) The Borrowers may, from time to time after the Closing Date, upon notice by the Parent Borrower to the Person appointed by the Borrower to arrange an incremental Facility (such Person (who~~ (i) ~~may be~~ After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans), the Revolving Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request the establishment of (x) one or more (A) additional tranches of term 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 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 ~~it so agrees~~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 ~~Person appointed~~ 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 ~~Parent Borrower~~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 ~~“Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof~~applicable Increased Amount Date, ~~request~~ provided that (i) ~~an increase~~ 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 ~~Commitments under~~ 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 ~~Tranche~~ 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 ~~same terms as~~Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, ~~and become part of, the Revolving Tranche proposed~~ commitment or other similar fees payable 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 revolving credit facilities to the Facilities, in each case, in such currency~~ arrangers (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 loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment” and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”their affiliates) in ~~an amount~~ connection therewith) shall not to exceed the sum of (x) the ~~greater of (A) $100,000,000 and (B) Consolidated EBITDA~~ Applicable Margin for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Revolving Loans made pursuant to the ~~terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien~~ Revolving Commitments that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based effect on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amountIncreased Amount Date, and (y) the ~~entire amount~~ 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 ~~increase~~ 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 ~~may~~ 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 ~~requested under this Section 2.14~~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 ~~for purposes~~ the interest margin in respect of ~~any New Loan Commitments established pursuant to this Section 2.14 and New~~ such 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Synthetic L/C Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be ~~incurred under~~ increased by an additional 200 basis points in the ~~Ratio-Based Incremental Facility (to~~ form of an additional OID or upfront fees if reasonably necessary after increasing the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Facility (which, Applicable Margin for the ~~avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility,~~ Term Loans as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under set forth in this clause (Cvii), ~~and~~ and (Dviii) ~~solely for~~ the ~~purpose of calculating the Consolidated First Lien Net Leverage Ratio~~Incremental Revolving Commitments, the ~~Consolidated Senior Secured Net Leverage Ratio~~ Incremental Term Loan Commitments 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 (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, each Synthetic 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) Commitments 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 Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facilityeffected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the 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 this ~~Section 2.14~~Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, 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. 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 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, (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 Increased Amount Date on which any Incremental Term Loan Commitments 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 Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, 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 Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the “Incremental 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 amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or ~~appropriate~~ appropriate, in the opinion of the Administrative Agent, to ~~give~~ effect ~~to such increase or new facility in accordance with its terms as set forth herein, including, for~~ the provisions of this Section 2.23. For the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or Revolving Credit Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans ~~and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based~~ constitute Incremental ~~Facility, the All-in Yield payable by the Borrowers applicable to such New~~ Term ~~Facility shall be determined by the Borrowers~~ Loans for all purposes of this Agreement and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other ~~such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o~~Loan Documents.

Appears in 1 contract

Sources: Credit Agreement (Avis Budget Group, Inc.)

Incremental Facilities. (a) The Borrowers (or, any Restricted Subsidiary or Restricted Subsidiaries of any Borrower that is not a Borrower (any such Restricted Subsidiary, an “Additional Borrower”) may~~, from time to time after the Closing Date, upon~~ ) may by written notice ~~by the Parent Borrower~~ to the ~~Person appointed by~~ Administrative Agent elect to request 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 establishment of one or more new ~~revolving credit~~ tranches or term facilities denominated in Dollars, an Alternative Currency or any other currency agreed to by the ~~Facilities~~applicable Borrower, ~~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”;~~ Administrative Agent and the ~~commitments thereof, the “~~Lenders providing such New ~~Revolving Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice~~ Term Loan Facility (each, a “New Term Loan Facility”~~; and~~ ) and/or increase the principal amount of the Term Loans, any ~~advance made~~ Incremental Term Loans or any Extended Term Loans by ~~a Lender thereunder, a “~~requesting new term loan commitments to be added to such Loans (together with any New Term ~~Loan”; and the commitments thereof~~Loan Facility, the “~~New~~ Incremental Term ~~Commitment~~Facility” and any Loans made pursuant to an Incremental Term Facility, “Incremental Term Loans” ) and/or request an increase in any Tranche of Revolving Credit Commitments (an “Incremental Revolving Facility” and, together with ~~the Revolving Credit Commitment Increase~~any Incremental Term Facility, ~~the New Revolving Commitments~~ “Incremental Facilities” and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term ~~Commitment Increase~~Loans, ~~the~~ “~~New Loan Commitments~~Incremental Loans”) ), in an aggregate amount not ~~to exceed~~ in excess of the ~~sum~~ greater of (x) $300,000,000 (or a principal amount equal to the ~~greater~~ Dollar Equivalent of (A$300,000,000) ~~$100,000,000~~ less any amount of Indebtedness incurred pursuant to Section 8.02(p) and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (if, after giving effect to the ~~“Ratio-Based Incremental Facility”) so long as~~ incurrence of such amount, the ~~Maximum~~ First Lien Net Leverage ~~/ Minimum Interest Coverage Requirement~~ Ratio is ~~satisfied and (z) an amount~~ less than or equal to ~~(i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured~~ 4.50:1.00 on a ~~pari passu basis with~~ Pro Forma Basis (assuming (A) the ~~Term Loans~~ 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) ~~all repurchases~~ 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 (1) 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 ~~made pursuant~~ may be incurred without regard to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) foregoing limits to the extent ~~accompanied by~~ that the Net Cash Proceeds of such Incremental Term Loans are used on the date of incurrence to permanently prepay and refinance on 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 (excluding, for the avoidance of doubt, proceeds dollar-for-dollar basis Term Loans of any ~~revolving credit facility (including~~ Tranche selected by the ~~Revolving Credit Facility))~~ Borrower, and ~~in the case of~~ any such ~~prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure~~ Incremental Term Loans (the “~~Prepayment-Based~~ Refinancing Incremental ~~Facility~~Term Loans”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments been incurred pursuant to this ~~Section 2.14~~ proviso and ~~New~~ Incremental ~~Notes pursuant to Section 2.15~~ Term Loans may be incurred ~~under~~ 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 ~~Ratio-Based~~ 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 ~~extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any~~ Administrative Agent (or 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 shorter period otherwise agreed to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds (b) Any Lender approached to participate in any New Loan Commitments may elect or decline, Administrative Agent in its sole discretion), (ii) the identity of each Lender or Affiliate or other Person that is consented 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 by the Administrative ~~Agent, each L/C Issuer~~ Agent (~~in each case, to the extent the~~ which 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) (each such Affiliate or other Person, ~~conditioned or delayed~~a “New Loan Lender”) to ~~become Lenders pursuant to a joinder agreement to this Agreement. Neither~~ whom the ~~Administrative Agent nor~~ Borrowers propose any portion of such Incremental Facility be allocated and the ~~Collateral Agent~~ amounts of such allocations and (~~in their respective capacities as such~~iii) ~~shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and~~ whether such ~~execution shall not be required for any such joinder agreement~~ 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~~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 ~~New Loan Commitments~~such Incremental Loans, each of the ~~Borrowers must provide~~ 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 ~~documentation~~ 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 ~~for~~ such ~~New Loan Commitments~~ Incremental Facility and (y) ~~a notice~~ 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 ~~identity~~ 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 ~~new Lender;~~ Incremental Facility provided ~~further, that such new~~ by any New Loan Lender shall ~~agree~~ be effected pursuant to ~~provide applicable~~ one or more joinder agreement (an “~~know your customer~~Incremental Amendment”~~, anti-money laundering rules~~ ) in form and ~~regulations, including the Patriot Act, and other customary onboarding information reasonably requested by~~ substance satisfactory to the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the ~~Incremental Arranger~~ Administrative Agent, each of which shall be recorded in the Register; and (~~and~~ D) the ~~Lenders hereby authorize~~ 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 ~~Arranger to execute and deliver any such documentation)) in order to establish the New Term~~ Facility or ~~New~~ 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 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 shall be, except as otherwise set forth herein, ~~including~~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, at it is understood and agreed that the ~~option of~~ 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 ~~Parent Borrower, with respect~~ initial yield on the Incremental Term Loans denominated in Dollars made on such Increased Amount Date to ~~any increase in~~ the Applicable Rate ~~relating to any existing Term Facility to bring such Applicable Rate~~ then in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule effect for the ~~Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New~~ outstanding Term Loans ~~or Specified Refinancing Term Loans) shall be amended~~ denominated in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being Dollars made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment Increased Amount Date and (y) ~~if,~~ the initial yield on the ~~date of~~ Incremental Term Loans denominated in Euros made on such ~~increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior~~ Increased Amount Date to the ~~Increase Effective Date be prepaid from~~ Applicable Rate then in effect for the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans ~~under~~ denominated in Euros made prior to such Increased Amount Date), (iv) any New Term Loan ~~Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term~~ Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the ~~other Facilities, not be Guaranteed by any Person that is not a Borrower~~ Term Loans or ~~Guarantor under each of the other Facilities, and~~ may be unsecured ~~or secured either on a pari passu basis with the other Facilities or on a “junior” basis~~ (and to the ~~other Facilities~~extent subordinated in right of payment or security, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements ~~that are~~ reasonably satisfactory to the ~~Incremental Arranger and~~Administrative Agent); provided, if that, in the event the New Term Loan Facility is incurred by a Foreign Subsidiary of PSP, such ~~Incremental Arranger is~~ 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)~~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, ~~(ii) the New~~ Tranche B-7 Term ~~Facility or New Revolving Facility~~Loans, ~~as applicable~~Euro Tranche C-5 Term Loans, ~~shall~~Euro Tranche C-6 Term Loans, ~~for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Term Facility or~~ Multicurrency Revolving Credit ~~Facility, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term~~ 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 (~~iii~~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 ~~Dollar-denominated, floating rate~~ New Term Loan Facility ~~that is pari passu in right~~ without the written consent of ~~payments~~ the holders of a majority of the aggregate unpaid principal amount of such Term Loan Commitments and ~~secured on a pari passu basis with InitialTranche B~~ New Term Loans ~~and is incurred on or prior to the date that is 12 months after the Closing Date and~~ outstanding under ~~the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to~~ such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Loan Facility~~) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then o~~.

Appears in 1 contract

Sources: Amendment No. 9 (Platform Specialty Products Corp)

Incremental Facilities. (a) The ~~Borrowers may,~~ Borrower may from time to time on or after the Closing Date, ~~upon~~ by written notice ~~by the Parent Borrower~~ to ~~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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof~~, request (i) an increase in to the existing Initial Revolving Commitments ~~under~~ (any such increase, the “New Revolving Commitments” and any Revolving ~~Tranche (which shall be on the same terms as, and become part of~~Loans thereunder, the “New Revolving ~~Tranche proposed to be increased~~Loans”) ~~(a “Revolving Credit Commitment Increase”),~~ and/or (ii) an increase ~~in any~~ to an existing Class of Term ~~Loan Tranche then outstanding (which shall be on~~ Loans and/or 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 establishment of one or more ~~new revolving credit facilities to~~ Term Loan Commitments hereunder (the ~~Facilities~~“New Term Loan Commitments,” and collectively with any New Revolving Commitments, ~~in each case~~the “New Commitments” and each, ~~in such currency or currencies as the Parent Borrower identifies in such notice (each~~individually, 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~~), in ~~each~~ any 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~~ in excess of the sum of (x) the ~~greater~~ Incremental Starter Basket plus (y) the aggregate principal amount of (A) $100,000,000 and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (and after giving effect to any acquisition consummated concurrently therewith additional New Commitments so long as, on a Pro Forma Basis ~~and all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.10)~~ (the “Cash-Capped Incremental Facility”), (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage / Minimum Interest Coverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of (1) Term Loans made pursuant to Section 2.05(a) and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans and (B) all repurchases of (1) Term Loans made pursuant to the terms hereof and (2) New Incremental Notes that are secured on a pari passu basis with the Term Loans, (ii) voluntary prepayments of all other Indebtedness secured by a Lien that is pari passu with the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 orassuming, in the case of any New ~~Loan Commitments denominated in an Alternative Currency~~Commitments, ~~the Alternative Currency Equivalent of such amount, and (y)~~ that the entire amount of ~~any~~ such New Revolving Commitments and New Term Loan Commitments were fully funded on the effective date of such increase ~~that may be requested under this Section 2.14; provided, further, that for purposes~~ and excluding the cash proceeds received by the Borrower in respect of any such New ~~Loan Commitments established pursuant~~ Commitments) and after giving effect 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 Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant any Permitted Acquisitions consummated in connection therewith~~) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility~~, (B1) in the case of loans under such New ~~Loan~~ Commitments ~~pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under~~ secured by Liens on the ~~Ratio-Based Incremental Facility~~ Collateral that rank pari passu with the liens on the Collateral securing the Facilities (~~to the extent compliant therewith~~other than any such Liens that are junior), the ~~Cash-Capped Incremental Facility~~ First ▇▇▇▇ ▇▇▇▇▇ Leverage Ratio on a Pro Forma Basis does not exceed 2.00 to 1.00 and (2) in the ~~Prepayment-Based Incremental Facility, and proceeds from any~~ case of loans under such ~~incurrence may be utilized in a single transaction~~ New Commitments secured by ~~first calculating the incurrence under the Ratio- Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant~~ Liens that rank junior to the ~~Cash-Capped Incremental Facility or~~ Liens on the ~~Prepayment-Based Incremental Facility) and then calculating~~ Collateral securing the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignationFacilities, the Borrowers 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 or the Prepayment-Based Incremental Facility, as applicable, by the amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or on a Pro Forma Basis does not exceed 4.50 to 1.00 and (3) in the ~~Consolidated~~ case of loans under such New Commitments that are unsecured, the Total Net Leverage Ratio on a Pro Forma Basis does not exceed 5.00 to ~~determine~~ 1.00, plus (z) the ~~availability under the Ratio-Based Incremental Facility at the time~~ aggregate amount of incurrence, any cash proceeds (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 all voluntary prepayments of the ~~Administrative Agent, each L/C Issuer~~ Term Loans outstanding on the Closing Date and Revolving Loans in respect of Revolving Commitments outstanding on the Closing Date (and not in ~~each case,~~ excess of $225,000,000) 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 ~~consent~~ proceeds of ~~any of~~ Indebtedness. Each such notice shall specify (i) the ~~foregoing would~~ date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be ~~required to assign Revolving Credit Loans or Term Loans, as applicable, to such Eligible Assignee~~effective, which consents shall not be unreasonably withheld, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be ~~required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and~~ a date not less than fifteen (15) Business Days after the date on which such ~~execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide~~ notice is delivered to the Administrative Agent (~~x) the documentation providing for~~ or such ~~New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree~~ shorter period as may be agreed to ~~provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested~~ by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”Agent) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Maturity Date applicable (e) On the Increase Effective Date with respect to an increase to an existing Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment with 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 or secured either on a pari passu basis with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in the case of any such junior secured New Revolving Facility or New Term Facility, such New Revolving Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent), (ii) the identity of each Lender or other Person reasonably acceptable to the Administrative Agent (such other Person, a “New Revolving Credit Lender” or “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, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facility, the All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oLoan

Appears in 1 contract

Sources: Credit Agreement (E.W. SCRIPPS Co)

Incremental Facilities. (a) The ~~Borrowers~~ Initial Borrower may, ~~from time to time after the Closing Date, upon~~ by written notice ~~by the Parent Borrower~~ to the ~~Person appointed by the Borrower~~ Administrative Agent at any time, on one or more occasions, request 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 Parent Borrower), the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to 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 add one or more new Classes of term facilities and/or increase the principal amount of any Class of Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the 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 Classes of incremental revolving ~~credit~~ facilities ~~to the Facilities~~(any such new Class or increase, ~~in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a~~ an “~~New~~ Incremental Revolving Facility” and, together with any ~~advance made by a Lender thereunder~~Incremental Term Facility, a “~~New Revolving Loan~~Incremental Facilities”; and the commitments thereof, the “New Revolving Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender loans thereunder, a “~~New Term Loan”; and the commitments thereof~~Incremental Revolving Loans” and, ~~the “New Term Commitment” and~~ together with ~~the Revolving Credit Commitment Increase~~any Incremental Term Loans, ~~the New Revolving Commitments and the Term Commitment Increase, the~~ “~~New Loan Commitments~~Incremental Loans”) in an aggregate amount not to exceed the ~~sum~~ 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) ~~the greater~~ with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of ~~(A)~~ not less than $~~100,000,000~~ 10,000,000, and (B) Consolidated EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available (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) (the “Cash-Capped Incremental Facility”)$5,000,000, increments in excess thereof, (y) with respect to Incremental Facilities denominated in an ~~unlimited~~ 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 “~~Ratio-Based~~ 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) ~~so long~~ 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 Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the ~~Maximum Leverage / Minimum Interest Coverage Requirement~~ 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 ~~satisfied~~ a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (zy) ~~an amount equal~~ that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (~~i)(A~~ii) ~~all voluntary prepayments~~ the weighted average life to maturity of any Incremental Term Loan (1x) 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 ~~made pursuant to Section 2.05(a)~~ and (2y) ~~New~~ 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 ~~Notes that are~~ Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the ~~Term~~ Loans ~~and (B) all repurchases~~ outstanding as of (1or made on) ~~Term~~ the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans ~~made pursuant~~ (and to the ~~terms hereof and (2) New Incremental Notes~~ extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that ~~are secured on a pari passu basis~~ is reasonably acceptable to the Administrative Agent with the ~~Term Loans,~~ Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (~~ii) voluntary prepayments of all other~~ 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 ~~pari passu with~~ not subordinated to the Liens securing the Obligations and (iii) 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 (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) and in the case of any such prepayment or repurchase at a price below par, based on the amount of the actual cash expenditure (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 or, in the case of any New Loan Commitments denominated in an Alternative Currency, the Alternative Currency Equivalent of such amount, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any ~~New Loan Commitments established pursuant to this Section 2.14 and New~~ mandatory prepayment (other than scheduled amortization payments) of Incremental ~~Notes issued pursuant to Section 2.15: (A) the Borrowers~~ Term Loans shall be ~~deemed to have used amounts under~~ 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 ~~Prepayment-Based Incremental Facility, if any, prior to utilization of the Cash-Capped Incremental Facility,~~ applicable Borrower and the ~~Borrowers~~ lenders in respect of such Incremental Term Loans shall be ~~deemed~~ permitted, in their sole discretion, to ~~have used the Ratio-Based Incremental Facility (~~elect to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction 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 prepay or the Prepayment-Based Incremental Facility) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and/or the incurrence under the Cash-Capped Incremental Facility, (C) the Borrowers may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such redesignation, the Borrowers 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 or the Prepayment-Based Incremental Facilityreceive, as applicable, by any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the ~~amount of such redesignated Indebtedness); provided, that such Indebtedness shall be automatically redesignated to the extent that, at the end~~ maturity date or commitment reduction date of any fiscal quarter, such redesignation would be permitted under this clause (C), and (D) solely for the purpose of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental ~~Facility at the time of incurrence, any cash proceeds (b) Any Lender approached to participate in any New~~ Revolving 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, 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, conditioned or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrowers must provide to the Administrative Agent (x) the documentation providing for such New Loan Commitments and (y) a notice of the identity of any new Lender; provided further, that such new Lender shall agree to provide applicable “know your customer”, anti-money laundering rules and regulations, including the Patriot Act, and other customary onboarding information reasonably requested by the Administrative Agent upon request. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this Section 2.14, the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize the any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein, including, for the avoidance of doubt, at the option of the Parent Borrower, with respect to any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition Investment, Restricted Payment or other transaction permitted pursuant to this Agreement as described in Section 1.02(i)) would exist after giving effect to such increase; (ii) (A) in the case of any increase of the Revolving Tranche, (1) the 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) other than with respect to any Extendable Bridge Loans, the final maturity shall be no earlier than the Latest Maturity ~~Date applicable (e) On the Increase Effective~~ Date with respect to ~~an increase to an~~ then existing Revolving ~~Tranche~~Commitments, (xvi) ~~each Revolving Credit Lender immediately prior~~ with respect to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act (except that each Revolving Commitment Increase Lender shall be required to purchase at par any L/C Advance so acquired) be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations represented by such Revolving Commitment Increase Lender will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Commitment Increase Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Incremental Term Loans ~~made~~ incurred under the Ratio Incremental Amount designated as 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 B Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that (i) Any New Revolving Facility and New Term Facility shall that rank pari passu in right of payment and security with the ~~other Facilities~~Obligations, ~~not~~ 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 ~~Guaranteed~~ increased (without any further action by any ~~Person~~ party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is ~~not a Borrower or Guarantor under each of~~ no more than 50 basis points higher than the ~~other Facilities,~~ All-In-Yield for the initial Term B Facility and ~~be unsecured or secured either on a pari passu basis with the other Facilities or on a “junior” basis~~ (vii) to the ~~other Facilities~~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 ~~each case over~~ 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 ~~same~~ Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (~~or less~~except to the extent (i) ~~Collateral that secures~~ permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the ~~Facilities~~ Latest Maturity Date applicable to (~~and~~ x) in the case of any ~~such junior secured New~~ Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility or ~~New~~ (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, ~~such New~~ 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 ~~or New Term 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 ~~intercreditor arrangements~~ 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 ~~are reasonably satisfactory~~ all references to “the occasion of any Borrowing” in Section 4.04 shall be deemed to refer to the ~~Incremental Arranger and, if such Incremental Arranger is not the Administrative Agent, the Administrative Agent~~Increased Amount Date), (ii) the ~~New Term Facility~~ 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 ~~New~~ change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). (f) On the date of effectiveness of any Incremental Revolving Facility, ~~as applicable~~the maximum amount of LC Exposure permitted hereunder shall increase by an amount, ~~shall~~if any, 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, as the case may be, unless the Borrowers otherwise elect (but in any event no more favorably than the existing Term Loans or Revolving Credit Loans, as applicable), and (iii) with respect to any Dollar-denominated, floating rate New Term Facility that is pari passu in right of payments and secured on a pari passu basis with InitialTranche B Term Loans and is incurred on or prior to the date that is 12 months after the Closing Date and under the Ratio-Based Incremental Facilityagreed upon by Administrative Agent, the ~~All-in Yield payable by the Borrowers applicable to such New Term Facility shall be determined by the Borrowers~~ relevant Issuing Bank and the Lenders providing such New Term Facility and shall not be more than 75 basis points higher than the corresponding All-in Yield payable by the Borrowers for the InitialTranche B Term Loans, unless the All-in Yield with respect to the InitialTranche B Term Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Term Facility and the corresponding All-in Yield on the InitialTranche B Term Loans is equal to 75 basis points; provided that this clause (iii) shall not apply to any New Term Facility that (A) is in an aggregate principal amount (together with any other such New Term Facility) equal to or less than $100,000,000, (B) has a final maturity later than one year after the Latest Maturity Date of the then oParent.

Appears in 1 contract

Sources: Credit Agreement (Galleria Co.)

Common use of Incremental Facilities Clause in Contracts