Common use of Incremental Facilities Clause in Contracts

Incremental Facilities. (a) The ~~Borrower~~ Borrowers or any Guarantor or, solely in the case of a New Term Loan Facility denominated in an Alternative Currency, any Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent (any such Guarantor or Restricted Subsidiary for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, ~~from time~~ by written notice to ~~time after~~ the ~~Closing Date~~Administrative Agent, ~~upon notice~~ request the establishment of one or more new tranches of term facilities denominated in Dollars, an Alternative Currency or any other currency agreed to by the ~~Borrower to~~ applicable Borrower, the Administrative Agent and the ~~Person appointed by the Borrower to arrange an incremental~~ Lenders providing such New Term Loan Facility (each, an “Incremental Credit Facility”) (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the 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~~ New Term Loan ~~Tranche then outstanding (which shall be on~~ Facility”) and/or increase the ~~same terms as, and become part of,~~ principal amount of the Term ~~Loan Tranche proposed~~ Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be ~~increased hereunder~~ added to such Loans (~~except as otherwise provided in clause (d~~together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) ~~below with respect to amortization)) (each, a “Term Commitment Increase”), (iii)~~ and/or request the ~~addition~~ establishment of one or more new ~~revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any ~~advance made~~ Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Borrower have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum of (x) the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) and (ii) 100% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding, less any amount of Indebtedness incurred pursuant to clause (x)(i) of Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, (i) in case of Incremental Facilities that are secured on a pari passu basis with the Obligations, the First Lien Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (ii) in case of Incremental Facilities that are secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (iii) in case of Incremental Facilities that are unsecured, the Fixed Charge Coverage Ratio is greater than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Credit Facilities are fully drawn) and, in each instance, for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that Incremental Facilities (1) shall be incurred pursuant to clause (y) above prior to utilization of any capacity pursuant to clause (x) above, (2) amounts incurred in reliance on clause (x) above concurrently with amounts incurred in reliance on clause (y) above shall not be included as Indebtedness in the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, for purposes of calculating any amounts that may be incurred pursuant to clause (y) above on the same day and (3) if all or any portion of any Incremental Facility was originally incurred or issued in reliance on clause (x) above and thereafter such amount could have been incurred pursuant to clause (y) above, such amount of such Incremental Facility shall be reclassified, as the applicable Borrower may elect from time to time, as having been incurred pursuant to clause (y) above and thereafter shall not count as utilization of clause (x) above; provided, further, that, notwithstanding the foregoing or anything to the contrary set forth herein, (1) Incremental Term Loans may be incurred without regard to any of the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on or about the date of incurrence to permanently prepay and refinance Term Loans of any Tranche selected by the applicable Borrower on a dollar-for-dollar basis, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso, and (2) New Revolving Credit Facilities may be incurred without regard to the foregoing limits to the extent that such New Revolving Credit Facilities are used on or about the date of incurrence to refinance and permanently reduce Revolving Credit Commitments of any Tranche selected by Borrower on a dollar-for-dollar basis, and any such Revolving Credit Commitments thereunder (the “Refinancing Incremental Revolving Credit Commitments”) shall be deemed to have been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the applicable Incremental Facility shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender ~~thereunder~~or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) and by the L/C Issuer to the extent such consent, if any, would be required under Section 11.06 for an assignment of Loans or Revolving Credit Commitments (any such Affiliate or other Person, a “New ~~Revolving Loan~~Incremental Lender”; ) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the ~~commitments thereof, the “New Revolving Commitment”)~~ amounts of such allocations and (iviii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Credit Facility. Such Incremental Facility shall become effective as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Facility (except that, with respect to this clause (A), solely to the ~~addition~~ extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist), (B) both before and after giving effect to such Incremental Facility, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid (except, solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, (x) with respect to Section 5.02(a), such Incremental Facility shall only be subject to customary “funds certain provisions” and (y) with respect to Section 5.02(b), such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist); (C) any Incremental Facility provided by any New Incremental Lender shall be effected pursuant to one or more ~~new term loan facilities~~joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by a Borrower (or Additional Borrower, if applicable) and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. (b) The creation or provision of any Incremental Facility or Incremental Loan (and, in connection therewith, any amendment to the terms of this Agreement that is necessary or appropriate to implement the provisions thereof or that is favorable to the then-existing Lenders, in each case, as reasonably determined by the Administrative Agent in its sole discretion) shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment. (c) The terms and provisions of any New Revolving Credit Facility (other than pricing, maturity and fees) shall be, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the existing Revolving Credit Facility; provided that, (i) no New Revolving Credit Facility shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date of any Tranche of Revolving Credit Loans (or, in the case of Refinancing Incremental Revolving Credit Commitments, the final maturity date of the Tranche of Revolving Credit Commitments that are being refinanced), (ii) any guarantor of any New Revolving Credit Facility shall also be a Guarantor; provided, that, in the event any New Revolving Credit Facility is incurred by a Foreign Subsidiary of ESI, such ~~currency~~ New Revolving Credit Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (iii) if secured, such New Revolving Credit Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is materially more restrictive, when taken as a whole, to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or ~~currencies~~ may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent and (iv) each New Revolving Credit Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent). (d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Tranche B-1 Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the Tranche B-1 Term Loans, as applicable; provided that, except as otherwise set forth herein or in the joinder agreement set forth in clause (a), then (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity of the Tranche B-1 Term Loans, (or, in the case of any New Term Loans that are Refinancing Incremental Term Loans, the weighted average life to maturity of the Tranche of Term Loans that are being refinanced), (ii) the final maturity date with respect to any New Term Loans shall be no earlier than the maturity date of the Tranche B-1 Term Loans (or, in the case of any New Term Loans that are refinancing Incremental Term Loans, the final maturity date of the Tranche of Term Loans that are being refinanced), (iii) if the Yield on any New Term Loans incurred no later than 12 months after the Closing Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the ~~Borrower identifies~~ “Yield Differential”) the Applicable Rate then in ~~such notice (each~~effect for any Term Loans, ~~a “~~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 ~~Facility”;~~ Loans (and ~~any advance made by a Lender thereunder, a “~~if the margins on the New Term ~~Loan”; and~~ Loans are subject to a leveraged-based pricing grid, appropriate increases to the ~~commitments thereof~~Applicable Rates for the Term Loans, consistent with the foregoing, shall be made) (this clause (iii), the “MFN Adjustment”), (iv) any guarantor of any New Term ~~Commitment”~~Loan Facility shall also be a Guarantor; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (v) if secured, such New Term Loan Facility shall not be secured by any assets that do not constitute Collateral and ~~together~~ may not be secured pursuant to security documentation that is more restrictive to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (vi) each New Term Loan Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (vii) any New Term Loan Facility may be denominated in Euros or Pounds Sterling so long as (A) the borrower thereunder is a Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent and (B) such New Term Loan Facility is subject to guarantee, collateral and collateral allocation arrangements that are reasonably satisfactory to ESI and the Administrative Agent. Each joinder agreement referred to in Section 2.14(a) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, as reasonably determined by the Administrative Agent in its sole discretion, to effect the provision of this Section 2.14. (e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Tranche B-1 Term Loans or Initial Revolving Credit ~~Commitment Increase~~Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B-1 Term Loans or Initial Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Term SOFR Loan to be converted into a Base Rate Loan on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Term SOFR Loan, EURIBO Rate Loan or RFR Loan on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Term SOFR Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans are to be allocated to an existing Interest Period for a Term SOFR Loan or EURIBO Rate Loan then, subject to Section 2.08(b), the ~~New Revolving Commitments and~~ interest rate applicable to such Incremental Loan for the ~~Term Commitment Increase,~~ remainder of such Interest Period shall equal the ~~“New Loan Commitments”;) in an amount not to exceed the sum of:~~T

Appears in 1 contract

Incremental Facilities. (a) ~~The Borrower may,~~ At any time and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, (I) the Term Loan Borrowers may, by notice to the Term Administrative Agent and/or (II) the Revolver Borrowers may, by notice to the Revolver Administrative Agent (whereupon, in each case, the applicable Administrative Agent shall promptly deliver a copy of such notice to each of the applicable Lenders), request to incur additional Senior Lien Term Loans or add one or more additional tranches of term loans, which US-DOCS\73723759.13 may be secured on a junior or pari passu basis or unsecured (the “Incremental Term Loans”) or one or more increases in the Revolving Credit Commitments (an “Incremental Revolving Increase”) and/or add one or more incremental revolving credit facility tranches (an “Incremental Revolving Tranche”, each such Incremental Revolving Tranche or Incremental Revolving Increase, an “Incremental Revolving Commitment”, and each such Incremental Revolving Commitment or Incremental Term Loan, an “Incremental Facility”, and any such Incremental Facility and any Incremental Equivalent Debt, “Incremental Debt”). Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate amount of the Incremental Facilities shall not exceed, at any time, the sum of (i) the aggregate amount of all voluntary prepayments of (A) the Loans pursuant to Section 2.12 and (B) all other Incremental Debt that is secured by a Lien on the Collateral that is pari passu with the Liens securing the Senior Lien Term Loan Facility, in each case made prior to the date of incurrence of such Incremental Debt (other than in connection with any refinancing of such Loans or other Incremental Debt or to the extent otherwise financed with the proceeds of long-term Indebtedness) and, in the case of voluntary prepayments of a revolving credit facility, solely to the extent accompanied by a corresponding permanent commitment reduction plus (ii) an unlimited amount (any such Incremental Debt, in each case to the extent incurred under this clause (ii), “Ratio-Based Incremental Debt”) so long as, in the case of this clause (ii), upon ~~notice~~ the effectiveness of the relevant Incremental Facility Amendment or the relevant documentation relating to other Incremental Debt, as the case may be, (x) in the case of an Incremental Debt that is secured by a Lien on the Collateral that is pari passu with the Liens securing the Senior Lien Term Loan Facility, the Secured Leverage Ratio, calculated on a Pro Forma Basis giving effect to such Incremental Debt and the use of the proceeds thereof (but it being understood that the proceeds from such Incremental Debt shall not be used for netting indebtedness and any such Incremental Facility that is a revolving credit facility shall be deemed to be fully drawn on the effective date thereof), does not exceed 1.75:1.00 and (y) in the case of Incremental Debt that is (A) secured by a Lien on the Collateral that is junior to the Liens securing the Senior Lien Term Loan Facility or (B) unsecured, the Total Leverage Ratio, calculated on a Pro Forma Basis giving effect to such Incremental Debt and the use of the proceeds thereof (but it being understood that the proceeds from such Incremental Debt shall not be used for netting indebtedness and any such Incremental Facility that is a revolving credit facility shall be deemed to be fully drawn on the effective date thereof), does not exceed 3.25:1.00. Unless elected otherwise by the ~~Borrower~~ applicable Borrowers, any Incremental Debt shall be deemed to have been incurred first, in reliance on clause (ii) above to the extent thereof, and second, in reliance on clause (i) above to the extent thereof. Incremental Debt may be incurred contemporaneously under clause (ii) above and under clause (i) above, and proceeds from any such incurrence may be utilized in a single transaction, by first calculating the amount available to be incurred under the clause (ii) above and disregarding any concurrent utilization under clause (i) above. All Incremental Term Loans and all Incremental Revolving Commitments shall be in an integral multiple of $1.0 million and in an aggregate principal amount that is not less than $5.0 million (or in such lesser minimum amount agreed by the applicable Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed); provided, that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability in respect of the Incremental Facilities. US-DOCS\73723759.13 (b) Any Incremental Facility (other than an Incremental Revolving Increase and an Incremental Term Loan that is an increase to the Senior Lien Term Loan Facility) (i) shall rank pari passu or junior in right of payment to the Obligations in respect of the other outstanding Term Loans and Revolving Credit Commitments or may be unsecured, in each case as set forth in the relevant Incremental Facility Amendment (which shall be reasonably satisfactory to the applicable Administrative Agent) and shall not be guaranteed by any Subsidiary that is not also a Guarantor and, if secured, shall be secured on a pari passu or junior basis, by the same Collateral securing the Facilities (which Liens shall be subject to intercreditor arrangements reasonably satisfactory to the applicable Administrative Agent, the Collateral Agent and the ~~Person appointed~~ applicable Borrowers), (ii) for purposes of prepayments, shall be treated substantially the same as (or, to the extent set forth in the relevant Incremental Facility Amendment, less favorably than) the other outstanding Loans and (iii) other than with respect to amortization, maturity date and pricing (including interest rate, fees, funding discounts and prepayment premiums) and, to the extent permitted pursuant to clause (i) above, ranking of right of payment and/or security, shall have the same terms as the Facilities or such terms that are, when taken as a whole, not materially more favorable (as reasonably determined by the ~~Borrower~~ applicable Borrowers in good faith) to ~~arrange~~ the lenders providing such Incremental Facility than the terms and conditions, taken as a whole, applicable to the then existing Facilities (except with respect to covenants (including any financial maintenance covenant added for the benefit of lenders providing such Incremental Facility) and other provisions so long as such covenants or other provisions (1) are also added for the benefit of the Lenders of under the Facilities or (2) only become applicable after the Latest Maturity Date of the then outstanding Facilities at the time of such incurrence of such Incremental Facility); provided, that (A) if the effective yield (whether in the form of interest rate margins, original issue discount, upfront fees or a “floor”, with such increased amount being equated to interest margin for purposes of determining any increase to the applicable interest margin under the Senior Lien Term Loan Facility or Revolving Credit Facility, as applicable) payable to all Lenders providing such Incremental Facility (but excluding any bona fide arrangement, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all Lenders (in their capacity as such) providing such Incremental Facility) on such Incremental Facility determined as of the initial funding date for such Incremental Facility exceeds the effective yield (determined on same basis as the preceding parenthetical) on the Senior Lien Term Loan Facility or Revolving Credit Facility or any then-existing Incremental Term Loans and/or Incremental Revolving Tranches that are secured on a pari passu basis with the Obligations (“Pari Passu Incremental Loans/Tranches”), as applicable, immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the Senior Lien Term Loan Facility or Revolving Credit Facility or such then existing Pari Passu Incremental Loans/Tranches, as applicable, shall be adjusted and/or the applicable Borrowers will pay additional fees to Lenders under the Senior Lien Term Loan Facility or Revolving Credit Facility or such then existing Pari Passu Incremental Loans/Tranches, as applicable, in order that such effective yield on such Incremental Facility shall not exceed such effective yield on the Senior Lien Term Loan Facility or Revolving Credit Facility or such then existing Pari Passu Incremental Loans/Tranches by more than 0.50% (provided, that if such adjustment is required due to the application of a higher interest rate benchmark floor on such Incremental Facility, such adjustment shall be effected solely through an ~~incremental~~ increase in the interest rate benchmark floor of the Senior Lien Term Loans or Revolving Credit Facility or such then existing Pari Passu Incremental Loans/Tranches, as applicable (or if no interest rate benchmark floor applies to the Senior Lien Term Loans or Revolving Credit Facility or such then existing Pari Passu Incremental Loans/Tranches, as applicable, at such time, an interest rate benchmark floor shall be added)), (B) any Incremental Term Loans shall not have a final maturity date earlier than the then Latest Maturity Date of the then remaining Senior Lien Term Loans or then existing Pari Passu Incremental Loans/Tranches and any Incremental Revolving Commitments shall not have a final maturity date earlier than the Revolving Credit Maturity Date and (C) any Incremental Term Loans shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the later of the then remaining Senior Lien Term Loans or then existing Incremental Term Loans, as applicable (determined, solely for the purposes of this clause (C), without giving effect to prepayments that reduced amortization of the then remaining Senior Lien Term Loans). Any Incremental Revolving Increase shall be on terms identical to the Revolving Credit Commitments under the Revolving Credit Facility proposed to be increased thereby and, for the avoidance of doubt, such Incremental Revolving Increase shall be deemed a Revolving Credit Commitment of the applicable Revolving Credit Facility pursuant to the applicable Incremental Facility Amendment (it being understood that an Incremental Facility establishing Incremental Revolving Increase will not create a separate Revolving Credit Facility and such Incremental Revolving Increase shall be deemed a part of the applicable Revolving Credit Facility); provided that the Applicable Margin or the Revolving Commitment Fee Rate, in each case applicable to the Revolving Credit Commitments and Revolving Credit Loans of such Revolving Credit Facility, may be increased, without the consent of any Lender, in connection with the incurrence of any Incremental Revolving Increase such that the Applicable Margin or the Revolving Commitment Fee Rate, as applicable, of such Revolving Credit Commitments are identical to those of the Incremental Revolving Increase, but additional upfront or similar fees may be payable to the lenders participating in the Incremental Revolving Increase without any requirement to pay such amounts to any existing Revolving Credit Lenders. Any Incremental Term Loan that is an increase to the Senior Lien Term Loan Facility shall be on terms identical to the Senior Lien Term Loan Facility proposed to be increased thereby and, for the avoidance of doubt, such Incremental Term Loan shall be deemed a Senior Lien Term Loan of the applicable Senior Lien Term Loan Facility pursuant to the applicable Incremental Facility Amendment (it being understood that an Incremental Facility establishing such Incremental Term Loan will not create a separate Senior Lien Term Loan Facility and such Incremental Term Loan shall be deemed a part of the applicable Senior Lien Term Loan Facility); provided that the Applicable Margin applicable to the Senior Lien Term Loan Facility may be increased, without the consent of any Lender, in connection with the incurrence of any such Incremental Term Facility such that the Applicable Margin of such Senior Lien Term Loan Facility are identical to those of such Incremental Term Loans, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Term Loans without any requirement to pay such amounts to any existing Term Loan Lenders. (c) Each notice from the applicable Borrowers pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments (including whether they will rank pari US-DOCS\73723759.13 passu with, or junior in right of payment to, and pari passu with, or junior in priority of security to, the Obligations in respect of the other outstanding Facilities or will be unsecured). Any Additional Lenders that elect to extend Incremental Term Loans or Incremental Revolving Commitments shall be reasonably satisfactory to the applicable Borrowers, and (unless such Additional Lender is already a Lender or an Affiliate of a Lender) the applicable Administrative Agent and, with respect to any Incremental Revolving Commitment, each Issuing Bank (in each case, any approval thereof not to be unreasonably withheld, delayed or conditioned), and, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental ~~Credit Facility~~Facility Amendment”) (to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrowers, such Additional Lender or Additional Lenders and the applicable Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders or any other Person ~~(who~~ other than the applicable Borrowers, the applicable Administrative Agent and the Additional Lenders with respect to such Incremental Facility Amendment. The Lenders hereby irrevocably authorize the Term Administrative Agent to enter into Incremental Facility Amendments and, as appropriate, amendments to the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches in respect of the existing Term Loans and such other amendments as may be necessary or appropriate in the opinion of the Term Administrative Agent and the Term Loan Borrowers to effect the provisions of this Section 2.23 (including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b) and including, for the avoidance of doubt, to provide for and reflect junior ranking in right of payment and/or junior priority in respect of Liens on Collateral, or the unsecured nature of such Incremental Facility, as applicable and as permitted pursuant to this Section 2.23). No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Commitments unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the applicable Administrative Agent and the Additional Lenders party thereto, be subject to (i) the payment in full of all fees and expenses owing to the applicable Administrative ~~Agent~~Agent and the Lenders in respect of such Incremental Facility, ~~if it so agrees~~to the extent invoiced prior to such date, or and (ii) ~~any other Person appointed by~~ the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be satisfaction or waiver on the ~~same terms as, and become part of, the Revolving Tranche proposed to be increased)~~ date thereof (each, an “Incremental Facility Closing Date”) of (x) the representations and warranties made by any Loan Party in or pursuant to the Loan Documents being true and correct in all material respects on and as of Incremental Facility Closing Date as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (provided, that in each case such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified by materiality or “~~Revolving Credit Commitment Increase~~Material Adverse Effect”); provided, that, (iix) ~~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 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 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:conn

Appears in 1 contract

Sources: Credit Agreement (Herbalife Ltd.)

Incremental Facilities. (a) The Parent Borrower ~~may~~may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (including on a delayed draw basis) (the commitments thereto, ~~from time to time after~~ the ~~Closing Date~~“New Term Loan Commitments”), ~~upon notice~~ (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 (or the Dollar Equivalent thereof) individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date on which the Parent Borrower proposes that the New Loan Commitments shall be effective (the effective date, the “Increased Amount Date”), the Borrowers (including by appointing a Guarantor (other than Holdings) as a “Borrower”, subject to customary “know your customer” and equivalent procedures and compliance with Section 1.13 (which shall be deemed to apply to New Term Loan Commitments, mutatis mutandis)) to which such New Loan Commitments will be available and the currency in which such New Loan Commitments will be borrowed. Subject to Section 1.11(c), in connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Parent Borrower shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the ~~Person appointed by the Borrower to arrange an incremental Facility (each, an “Incremental Credit Facility”) (such~~ calculations and basis therefor. The Borrowers may approach any Lender or any Person (~~who~~ other than a natural Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may be elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) ~~the Administrative Agent, if it so agrees, or~~ (iiA) ~~any other Person appointed by the Borrower after consultation with the Administrative Agent~~subject to Section 1.11(c), ~~the “Incremental Arranger”~~no Event of Default under Section 11.1 or Section 11.5 (solely with respect to a Borrower) ~~specifying the proposed Borrower~~ shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable and (~~which may include a Co-Borrower)~~B) after giving effect to such New Loan Commitments, the ~~proposed amount thereof and the proposed currency denomination thereof, request (i~~condition in Section 7.1(b) ~~an increase in the Commitments under any Revolving Tranche (which~~ shall be on satisfied (it being understood that all references to “the ~~same terms as~~date of such Credit Event” or similar language in such Section 7.1 shall be deemed to refer to the applicable date determined in accordance with Section 1.11(c)); provided, ~~and become part of~~further, that the ~~Revolving Tranche proposed to be increased~~lenders providing such New Loan Commitments may modify and/or waive the requirement regarding the condition in Section 7.1(b) ~~(each, a “Revolving Credit Commitment Increase”)~~for all purposes hereunder, (ii) ~~an increase in any Term~~ the New Loan ~~Tranche then outstanding (~~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 on recorded in the ~~same terms as,~~ Register and ~~become part of,~~ shall be subject to the ~~Term Loan Tranche proposed to be increased hereunder (except as otherwise provided~~ requirements set forth in ~~clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”~~Section 5.4(e), (iii) the ~~addition~~ 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 ~~one~~ 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 ~~more new revolving credit facilities~~ (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 ~~Facilities~~satisfaction of the foregoing terms and conditions, in (a) with respect to New Revolving Credit Commitments, each ~~case, in~~ of the Lenders with Revolving Credit Commitments of such ~~currency or currencies as the Borrower identifies in such notice~~ Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving ~~Facility”~~ Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, ~~any advance~~ each Loan made by under a ~~Lender thereunder,~~ New Revolving Credit Commitment (a “New Revolving Credit Loan”; ) and ~~the commitments thereof~~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 ~~Commitment~~Loan Lender and each Lender with an Additional Revolving Credit Commitment (together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and the Letter of Credit Issuer shall have consented (ivnot to be unreasonably withheld, delayed or conditioned) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the ~~addition~~ extent such consent, if any, would be required under Section 13.6(a) for an assignment of ~~one~~ Revolving Loans or ~~more new term loan facilities~~Revolving Credit Commitments, in as applicable, to such Lender or Incremental Revolving Loan Lender. (c) On or after the date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~case, in such currency or currencies as the Borrower identifies in such notice~~ Lender with a New Term Loan Commitment (each, a “New Term ~~Facility~~Loan Lender”~~; and~~ ) of any ~~advance made by~~ Series shall make a ~~Lender thereunder~~Loan to the Borrowers, as specified in the applicable Notice of Borrowing, (a “New Term Loan~~”; and~~ ” and, together with the ~~commitments thereof~~Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount up to its New Term ~~Commitment~~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 mature on or after the date that is one year after the Initial Term Loan Maturity Date, (3) any New Term Loans originally incurred in reliance upon the Shared Incremental Amount or the Prepayment and Extension Amount, (4) any New Term Loans incurred in connection with a Permitted Acquisition or other permitted Investment or to refinance Indebtedness incurred in connection with a Permitted Acquisition or other permitted Investment, (5) any New Term Loans having an aggregate principal amount not exceeding the greater of $210,800,000 and 100% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as selected by the Parent Borrower and (6) any New Term Loans that constitutes a bridge facility (clauses (1), (2), (3), (4), (5) and (6), collectively, the “MFN Exceptions”); and ~~together~~ (v) to the extent such terms and documentation are materially more favorable to the New Term Loan Lenders than the terms of the then existing Amendment No. 56 Term Loans (except to the extent permitted (or, for the avoidance of doubt, not prohibited) by clause (i), (ii), (iii) or (iv) above), they shall be either (A) reasonably satisfactory to the Administrative Agent (provided that no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Initial Term Loan Maturity Date or if such covenants or other provisions are added for the benefit of the Initial Term Loans or the Amendment No. 56 Term Loans, as applicable), (B) then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment or establishment of initial terms with respect thereto)) for the applicable type of Indebtedness or (C) applicable only to periods after the Initial Term Loan Maturity Date. (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Amendment No. 4 Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Revolving Credit ~~Commitment Increase, the New Revolving Commitments~~ Loans and the Term ~~Commitment Increase~~Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Amendment No. 4 Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments, (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, #101458425v1 (iv) subject to Section 3.12 to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that the Borrowers shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, (viii) to the extent that any New Term Loan does not form a part of the same Class with the applicable outstanding Class(es) of Term Loans for United States federal income tax purposes, such New Term Loan will have a separate CUSIP, LIN or any other security identifier, and (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. (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 (an “~~New~~ Existing Term Loan ~~Commitments~~Class”~~;) in an~~ ) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(g). In order to establish any Extended Term Loans, the Parent Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not ~~to exceed the sum of:~~be materially more restrictive to

Appears in 1 contract

Sources: Credit Agreement (Mirion Technologies, Inc.)

Incremental Facilities. (a) The Parent Borrower may, ~~from time to time after the Closing Date, upon~~ by written notice ~~by the Borrower~~ to the Administrative Agent ~~and~~ at any time, on one or more occasions, request to (i) add one or more new Classes of term facilities and/or increase the ~~Person appointed~~ principal amount of any Class of Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by ~~the Borrower~~ requesting new term loan commitments to ~~arrange an incremental Facility~~ be added to such Loans (~~each~~any such new Class or increase, an “Incremental ~~Credit~~ 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 facilities (any such ~~Person (who may be~~ new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount. Such notice shall set forth (i) the ~~Administrative Agent, if it so agrees, or (ii) any other Person appointed by~~ amount of the ~~Borrower after consultation with the Administrative Agent), the “~~Incremental ~~Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the~~ Term Loans and/or Incremental Revolving Commitments ~~under any Revolving Tranche~~ being requested (which shall be ~~on the same terms as~~(x) in an aggregate principal amount of not less than $10,000,000, and ~~become part of,~~ $5,000,000 increments in excess thereof or (y) equal to the ~~Revolving Tranche proposed to be increased) (each, a “Revolving Credit Commitment Increase”~~remaining Incremental Amount), (ii) ~~an increase in any Term Loan Tranche then outstanding (which shall be on~~ the ~~same terms as,~~ applicable Borrower 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~~ date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility. (b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of ~~one~~ Loans to such Additional Lender. (c) The creation or ~~more new revolving credit facilities~~ 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 ~~Facilities, in each case, in~~ Administrative Agent an Incremental Facility Agreement and such ~~currency or currencies~~ other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower ~~identifies~~ and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Facility Agreement; provided that: (i) the final maturity date of any Incremental Term Loan shall be no earlier than the Latest Maturity Date with respect to Term Loans then outstanding, (ii) the weighted average life to maturity of any Incremental Term Loan shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term Loans, calculated as of the date of making such ~~notice~~ Incremental Term Loan, (~~each,~~ iii) such Incremental Facilities shall be secured on a ~~“New Revolving Facility” and, any advance~~ pari passu basis with respect to the Loans outstanding as of (or made ~~by a Lender thereunder, a “New Revolving Loan”; and~~ on) the ~~commitments thereof, the “New Revolving Commitment”) and~~ Increased Amount Date, (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then-existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the ~~addition~~ applicable Borrower and the lenders in respect of ~~one or more new term loan facilities~~such Incremental Term Loans shall be permitted, in ~~each case~~their sole discretion, ~~in such currency~~ to elect to prepay or ~~currencies~~ receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the ~~Borrower identifies in such notice~~ 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, (~~each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”;~~ vi) the All-In-Yield (and the ~~commitments~~ components thereof, ) applicable to any Incremental Facility may be determined by the ~~“New Term Commitment”;~~ applicable Borrowers and ~~together with~~ the lender or lenders providing such Incremental Facility. (vii) to the extent an Incremental Revolving ~~Credit Commitment Increase,~~ Facility is structured as an additional revolving facility under this agreement and not as an increase to the ~~New~~ existing Revolving Commitments ~~and the Term Commitment Increase~~hereunder, ~~the “New Loan Commitments”;) in an amount not to exceed the sum of:~~(x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time,

Appears in 1 contract

Sources: Credit Agreement (Krispy Kreme, Inc.)

Incremental Facilities. (a) The ~~Borrower~~ Borrowers or any Guarantor or, solely in the case of a New Term Loan Facility denominated in an Alternative Currency, any Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent (any such Guarantor or Restricted Subsidiary for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, ~~from time~~ by written notice to ~~time after~~ the ~~Closing Date~~Administrative Agent, ~~upon notice~~ request the establishment of one or more new tranches of term facilities denominated in Dollars, an Alternative Currency or any other currency agreed to by the ~~Borrower to~~ applicable Borrower, the Administrative Agent and the ~~Person appointed by the Borrower to arrange an incremental~~ Lenders providing such New Term Loan Facility (each, an “Incremental Credit Facility”) (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the 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~~ New Term Loan ~~Tranche then outstanding (which shall be on~~ Facility”) and/or increase the ~~same terms as, and become part of,~~ principal amount of the Term ~~Loan Tranche proposed~~ Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be ~~increased hereunder~~ added to such Loans (~~except as otherwise provided in clause (d~~together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) ~~below with respect to amortization)) (each, a “Term Commitment Increase”), (iii)~~ and/or request the ~~addition~~ establishment of one or more new ~~revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any ~~advance made~~ Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Borrower have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum of (x) the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) and (ii) 100% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding, less any amount of Indebtedness incurred pursuant to clause (x)(i) of Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, (i) in case of Incremental Facilities that are secured on a pari passu basis with the Obligations, the First Lien Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (ii) in case of Incremental Facilities that are secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (iii) in case of Incremental Facilities that are unsecured, the Fixed Charge Coverage Ratio is less than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Credit Facilities are fully drawn) and, in each instance, for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that Incremental Facilities (1) shall be incurred pursuant to clause (y) above prior to utilization of any capacity pursuant to clause (x) above, (2) amounts incurred in reliance on clause (x) above concurrently with amounts incurred in reliance on clause (y) above shall not be included as Indebtedness in the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, for purposes of calculating any amounts that may be incurred pursuant to clause (y) above on the same day and (3) if all or any portion of any Incremental Facility was originally incurred or issued in reliance on clause (x) above and thereafter such amount could have been incurred pursuant to clause (y) above, such amount of such Incremental Facility shall be reclassified, as the applicable Borrower may elect from time to time, as having been incurred pursuant to clause (y) above and thereafter shall not count as utilization of clause (x) above; provided, further, that, notwithstanding the foregoing or anything to the contrary set forth herein, (1) Incremental Term Loans may be incurred without regard to any of the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on or about the date of incurrence to permanently prepay and refinance Term Loans of any Tranche selected by the applicable Borrower on a dollar-for-dollar basis, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso, and (2) New Revolving Credit Facilities may be incurred without regard to the foregoing limits to the extent that such New Revolving Credit Facilities are used on or about the date of incurrence to refinance and permanently reduce Revolving Credit Commitments of any Tranche selected by Borrower on a dollar-for-dollar basis, and any such Revolving Credit Commitments thereunder (the “Refinancing Incremental Revolving Credit Commitments”) shall be deemed to have been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the applicable Incremental Facility shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender ~~thereunder~~or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) and by the L/C Issuer to the extent such consent, if any, would be required under Section 11.06 for an assignment of Loans or Revolving Credit Commitments (any such Affiliate or other Person, a “New ~~Revolving Loan~~Incremental Lender”; ) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the ~~commitments thereof, the “New Revolving Commitment”)~~ amounts of such allocations and (iviii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Credit Facility. Such Incremental Facility shall become effective as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Facility (except that, with respect to this clause (A), solely to the ~~addition~~ extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist), (B) both before and after giving effect to such Incremental Facility, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid (except, solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, (x) with respect to Section 5.02(a), such Incremental Facility shall only be subject to customary “funds certain provisions” and (y) with respect to Section 5.02(b), such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist); (C) any Incremental Facility provided by any New Incremental Lender shall be effected pursuant to one or more ~~new term loan facilities~~joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by a Borrower (or Additional Borrower, if applicable) and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. (b) The creation or provision of any Incremental Facility or Incremental Loan (and, in connection therewith, any amendment to the terms of this Agreement that is necessary or appropriate to implement the provisions thereof or that is favorable to the then-existing Lenders, in each case, as reasonably determined by the Administrative Agent in its sole discretion) shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment. (c) The terms and provisions of any New Revolving Credit Facility (other than pricing, maturity and fees) shall be, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the existing Revolving Credit Facility; provided that, (i) no New Revolving Credit Facility shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date of any Tranche of Revolving Credit Loans (or, in the case of Refinancing Incremental Revolving Credit Commitments, the final maturity date of the Tranche of Revolving Credit Commitments that are being refinanced), (ii) any guarantor of any New Revolving Credit Facility shall also be a Guarantor; provided, that, in the event any New Revolving Credit Facility is incurred by a Foreign Subsidiary of PSP, such ~~currency~~ New Revolving Credit Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (iii) if secured, such New Revolving Credit Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is materially more restrictive, when taken as a whole, to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of PSP, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or ~~currencies~~ may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent and (iv) each New Revolving Credit Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent). (d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Initial Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the Initial Term Loans, as applicable; provided that, except as otherwise set forth herein or in the joinder agreement set forth in clause (a), then (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity such refinanced Tranche of the Term Loans, (or, in the case of any New Term Loans that are Refinancing Incremental Term Loans, the weighted average life to maturity of the Tranche of Term Loans that are being refinanced), (ii) the final maturity date with respect to any New Term Loans shall be no earlier than the maturity date of such refinanced Tranche (or, in the case of any New Term Loans that are refinancing Incremental Term Loans, the final maturity date of the Tranche of Term Loans that are being refinanced), (iii) if the Yield on any New Term Loans incurred no later than 12 months after the Closing Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the ~~Borrower identifies~~ “Yield Differential”) the Applicable Rate then in ~~such notice (each~~effect for any Term Loans, ~~a “~~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 ~~Facility”;~~ Loans (and ~~any advance made by a Lender thereunder, a “~~if the margins on the New Term ~~Loan”; and~~ Loans are subject to a leveraged-based pricing grid, appropriate increases to the ~~commitments thereof~~Applicable Rates for the Term Loans, consistent with the foregoing, shall be made) (this clause (iii), the “MFN Adjustment”), (iv) any guarantor of any New Term ~~Commitment”~~Loan Facility shall also be a Guarantor; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of PSP, such New Term Loan Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (v) if secured, such New Term Loan Facility shall not be secured by any assets that do not constitute Collateral and ~~together~~ may not be secured pursuant to security documentation that is more restrictive to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of PSP, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (vi) each New Term Loan Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (vii) any New Term Loan Facility may be denominated in Euros or Pounds Sterling so long as (A) the borrower thereunder is a Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent and (B) such New Term Loan Facility is subject to guarantee, collateral and collateral allocation arrangements that are reasonably satisfactory to PSP and the Administrative Agent. Each joinder agreement referred to in Section 2.14(a) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, as reasonably determined by the Administrative Agent in its sole discretion, to effect the provision of this Section 2.14. (e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Term Loans or Revolving Credit ~~Commitment Increase~~Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Term Loans or Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Eurocurrency Rate Loan to be converted into a Base Rate Loan on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Eurocurrency Rate Loans on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Eurocurrency Rate Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans is to be allocated to an existing Interest Period for a Eurocurrency Rate Loan then, subject to Section 2.08(b), the ~~New Revolving Commitments and~~ interest rate applicable to such Incremental Loan for the ~~Term Commitment Increase,~~ remainder of such Interest Period shall equal the ~~“New Loan Commitments”;) in an amount not to exceed the sum of:~~Adjusted Eurocurrency Rate for a period approximately equal t

Appears in 1 contract

Incremental Facilities. (a) The Parent Borrower may, by written notice to the Administrative Agent at any time, on one or more occasions, request to (i) 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 facilities (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof or (z) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility. (b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender. (c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan. (d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans then outstanding and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans then outstanding, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred within 12 months of the Restatement Effective Date under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party and (ix) subject to clauses (i) and (ii) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by the Parent Borrower and lenders thereunder. All terms and documentation with respect to Incremental Facilities which are not substantially consistent from ~~time~~ those with respect to ~~time~~ the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the ~~Closing Date~~Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon ~~notice by~~ the ~~Borrower to~~ 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 ~~Person appointed~~ 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 ~~Borrower~~ Administrative Agent with the Parent Borrower’s consent (not to ~~arrange an incremental Facility~~ be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto. (~~each~~e) Notwithstanding the foregoing, ~~an “~~no Incremental ~~Credit Facility”) (such Person (who~~ 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 ~~Administrative Agent, if it so agrees,~~ date on which such Loan is made or ~~(ii) any other Person appointed by the Borrower after consultation with the Administrative Agent)~~of such effectiveness, 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~~ conditions set forth in ~~the Commitments under any Revolving Tranche (which~~ Section 4.02 shall be on satisfied (it being understood that all references to “the ~~same terms as, and become part of,~~ occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the ~~Revolving Tranche proposed to be increased) (each, a “Revolving Credit Commitment Increase”~~Increased Amount Date), (ii) ~~an increase in any Term Loan Tranche then outstanding (which~~ the Administrative Agent shall be 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 ~~same terms as~~Restatement Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, ~~and become part of~~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 ~~Term Loan Tranche proposed to be increased~~ maximum amount of LC Exposure permitted hereunder ~~(except as otherwise provided in clause (d) below with respect to amortization)) (each~~shall increase by an amount, ~~a “Term Commitment Increase”)~~if any, ~~(iii)~~ agreed upon by Administrative Agent, the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice (each, a “New Revolving Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”; relevant Issuing Bank 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 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:Parent Borrower.

Appears in 1 contract

Sources: Credit Agreement (Coty Inc.)

Incremental Facilities. (a) The ~~Borrower~~ Borrowers may, from time to time after the Closing Date, ~~upon notice by the Borrower to the Administrative Agent and the Person appointed by the Borrower to~~ arrange an incremental Facility (~~each, an “Incremental Credit Facility”) (~~with such Person arranging such Facility (who may be (i) the Administrative ~~Agent, if it so agrees,~~ Agent or (ii) any other Person appointed by the Borrower ~~after consultation with the Administrative Agent~~Representative), the “Incremental Arranger”) ~~specifying the proposed Borrower (which may include a Co-Borrower), 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 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 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:

Appears in 1 contract

Sources: Credit Agreement (StandardAero, Inc.)

Incremental Facilities. (a) ~~The Borrower may~~Upon written notice to the Administrative Agent (which shall promptly notify the Lenders), ~~from time to~~ at any time after the Closing Date, ~~upon notice by~~ the Borrower ~~to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental~~ may request (i) one or more additional tranches of term loans or increases in any then-existing Term Facility (~~each,~~ other than the Delayed Draw Term Facility) (each an “Incremental ~~Credit Facility”) (such Person (who may be (i) the Administrative Agent~~Term Commitment” and all of them, ~~if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent)~~collectively, the “Incremental ~~Arranger~~Term Commitments”) ~~specifying~~ and (ii) one or more additional tranches of revolving commitments or increases in the ~~proposed Borrower~~ aggregate amount of any Class of Revolving Credit Commitments, including increases in the Letter of Credit Sublimit to the extent consented to by each affected L/C Issuer (~~which may include a Co-Borrower)~~each an “Incremental Revolving Credit Commitment” and all of them, collectively, the ~~proposed~~ “Incremental Revolving Credit Commitments” and, together with the Incremental Term Commitments, the “Incremental Commitments”); provided that no Lender shall be required to participate in any Incremental Facility; provided, further, that after giving effect to any such addition, the aggregate principal amount ~~thereof and~~ of Incremental Commitments that have been added pursuant to this Section 2.14 shall not exceed the ~~proposed currency denomination thereof, request~~ sum of (x) the Fixed Dollar Amount minus the aggregate principal amount of (i) ~~an increase in~~ all Incremental Second Lien Commitments that have been added pursuant to clause (x) of Section 2.14 of 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~~ Second Lien Credit ~~Commitment Increase”)~~Agreement, (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 all Permitted Other Indebtedness incurred under clause (dx) ~~below with respect to amortization)) (each, a “Term Commitment Increase”),~~ of the definition thereof and (iii) all Permitted Other Second Lien Indebtedness incurred under clause (x) of the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice (each, a “New Revolving Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”; and the commitments definition thereof, plus (y) the ~~“New~~ aggregate principal amount of all voluntary terminations of any portion of the Revolving ~~Commitment”~~Credit Commitments pursuant to Section 2.06(a) and all voluntary prepayments of Term Loans pursuant to Section 2.05(a)(i) and (iv) and Section 10.07(i) (to the ~~addition~~ extent made by the Borrower or any of ~~one~~ its Subsidiaries), in each case made at or ~~more new term loan facilities,~~ prior to such time (in each case, other than (i) prepayments of Indebtedness incurred in reliance on clause (z) of this Section 2.14(a) and (ii) prepayments funded with proceeds of Indebtedness) minus the aggregate principal amount of all Permitted Other Indebtedness incurred under clause (y) of the definition thereof, plus (z) such additional amount so long as, after giving effect on a Pro Forma Basis to the incurrence thereof (assuming for such purposes that the entire amount of any such Incremental Commitments and all previous Incremental Commitments were fully funded) cause the First Lien Net Leverage Ratio (without netting the cash and Cash Equivalents constituting proceeds of the applicable Incremental Facilities) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 6.01(a) or (b) would not exceed 4.00:1.00, and any such addition shall be in an aggregate amount of not less than $5,000,000 or any whole multiple of $1,000,000 in excess thereof. The Borrower may (I) incur Incremental Commitments under clause (x), (y) or (z) of the second proviso of the immediately preceding sentence in such ~~currency~~ order as it may elect in its sole discretion and shall be allowed to classify under which clause such Incremental Commitments are being incurred at the time of such incurrence, without giving Pro Forma Effect to any Incremental Facilities or ~~currencies as the Borrower identifies in such notice (each, a “New Term Facility”; and~~ any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment”; and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and increases of the Term ~~Commitment Increase,~~ Facility (or any portion thereof) in each case permitted to be incurred under such clauses (x) and (y) that is being incurred concurrently with an incurrence under such clause (z) when calculating the ~~“New Loan Commitments”;) in an~~ amount ~~not~~ of Incremental Commitments (or any portion thereof) that may be incurred pursuant to ~~exceed the sum of:~~such clause (z) at such time and (II) later reclassify

Appears in 1 contract

Sources: First Lien Credit Agreement (TGPX Holdings I LLC)

Incremental Facilities. (a) ~~The~~ Upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrower ~~may,~~ may from time to time ~~after~~ add one or more new tranches of term loan facilities (each an “Incremental Term Loan”) or request an increase in the ~~Closing Date, upon notice by~~ Aggregate Commitments (which increase may take the ~~Borrower~~ form of an increase to the ~~Administrative Agent~~ Revolving Credit Facility or to the Term Facility) (each an “Incremental Increase”; together with the Incremental Term Loans, and ~~the Person appointed by the Borrower to arrange an incremental Facility (~~each, an “Incremental ~~Credit~~ Facility”) by an amount (~~such Person~~ the “Incremental Amount”), together with amounts utilized to incur any Incremental Notes, not exceeding the sum of (~~who may be~~ A) the greater of (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof $250,000,000 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 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, prepayments made with the proceeds of long term indebtedness), plus (B) an unlimited amount so long as, in ~~such currency or currencies as~~ the case of this clause (B), (x) in the case of Indebtedness secured on a pari passu basis with the Term Loans, the Consolidated Senior Secured Net Leverage Ratio of the Borrower ~~identifies~~ and its Subsidiaries as of the last day of the applicable Reference Period, on a pro forma basis, does not exceed the Consolidated Senior Secured Net Leverage Incurrence Ratio, and (y) in ~~such notice (each,~~ the case of Indebtedness secured on a ~~“New Revolving Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”; and the commitments thereof~~junior lien or unsecured basis, the ~~“New Revolving Commitment”~~Consolidated Total Leverage Ratio of the Borrower and its Subsidiaries as of the last day of the applicable Reference Period, on a pro forma basis does not exceed the Consolidated Total Leverage Incurrence Ratio; provided, that Incremental Facilities may be incurred under both the preceding clauses (A) and (ivB) in a single transaction by first calculating the portion of the Indebtedness being incurred under clause (B) (without giving effect to the Indebtedness being incurred under clause (A)) and second calculating the portion of the Indebtedness being incurred under clause (A); provided, further, that (i) any such request for an Incremental Facility shall be in a minimum amount of $25,000,000, (ii) the ~~addition~~ Borrower may make a maximum of ~~one or more new term loan facilities, in each case, in~~ five such ~~currency or currencies as~~ requests following the Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment”; and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”;) in an amount not to exceed the sum of:Amendment No. 1

Appears in 1 contract

Sources: Credit Agreement (Integra Lifesciences Holdings Corp)

Incremental Facilities. (a) The Borrower ~~may, from time to time after the Closing Date, upon~~ may by written notice ~~by the Borrower~~ to the Administrative Agent elect to request the establishment of one or more (x) additional term loans, which may be of the same Class as any then-existing Term B Loans (a “Term B Increase”) or a separate Class of Term B Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term B Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Increase”) or a separate Class of Term C Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term C Commitments”) and/or (z) revolving credit commitments, 100 which may be of the same Class as any then-existing Revolving Commitments (the commitments thereto, the “Additional Revolving Commitments”) or a separate Class of Revolving Commitments (the commitments thereto, the “New Revolving Commitments” and, together with the Additional Revolving Commitments, the “Incremental Revolving Commitments”; together with the Incremental Term B Commitments and the ~~Person appointed~~ Incremental Term C Commitments, the “Incremental Commitments”), by an aggregate principal amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the ~~Borrower to arrange an incremental Facility~~ Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “~~Incremental Credit Facility~~Increased Amount Date”) ~~(such~~ on which the Borrower proposes that the Incremental Commitments shall be effective. The Borrower may approach any Lender or any Person (~~who~~ other than a natural Person) to provide all or a portion of the Incremental Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Commitments may be elect or decline, in its sole discretion, to provide an Incremental Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Commitment. In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the ~~Administrative Agent~~immediately succeeding clause (y), ~~if it so agrees,~~ no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Commitments and the borrowing of any Incremental Loans thereunder or (iiy) ~~any~~ if such Incremental Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other ~~Person appointed~~ provisions of Section 11 as may otherwise be required by the ~~Borrower~~ Lenders providing the applicable Incremental Commitment immediately before or immediately after ~~consultation with the Administrative Agent), the “~~giving effect to such Incremental ~~Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof~~ Commitment and the ~~proposed currency denomination thereof, request (i) an increase in the Commitments under~~ borrowing of 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”)~~Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Commitments, on an ~~increase in any Term Loan Tranche then outstanding (which~~ Increased Amount Date, there shall be on no requirement for the ~~same terms as~~Borrower to bring down the representations and warranties under the Credit Documents unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Commitments (provided that, ~~and become part of~~in the case of Incremental Loans or Incremental Commitments used to finance a Permitted Acquisition or other acquisition constituting a permitted Investment, only the ~~Term Loan Tranche proposed~~ Specified Representations (conformed as necessary for such acquisition) shall be required to be ~~increased hereunder (except as otherwise provided~~ true and correct in ~~clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”~~all material respects if requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Commitments), (iii) the ~~addition of~~ Incremental Commitments shall be effected pursuant to one or more ~~new revolving credit facilities~~ Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the Incremental Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any Incremental Term B Loans made on an Increased Amount Date shall be designated (x) a separate series of Term B Loans or (y) in the case of a Term B Increase, a part of the series of existing Term B Loans subject to such increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Increase, a part of the series of existing Term C Loans subject to such increase, and (c) any Incremental Revolving Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Commitments or (y) in the case of a Additional Revolving Commitment, a part of the series of existing Revolving Commitments subject to such increase (such 101 new or existing series of Term B Loans, Term C Loans or Revolving Commitments, each, a “Series”). (b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to Additional Revolving Commitments, each of the Revolving Lenders with an existing Revolving Commitment of the Class being increased by such Additional Revolving Commitments shall automatically and without further act be deemed to have assigned to each Revolving Lender with a Additional Revolving Commitment of such Class (each, an “Additional Revolving Lender”), and each of such Additional Revolving Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such Revolving Lender’s participations hereunder in outstanding Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Lender holding Revolving Loans (including each such Additional Revolving Lender), as applicable, will equal the percentage of the aggregate Total Revolving Commitments of all Revolving Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the Revolving Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Loans of such Class will be held by existing Revolving Lenders under such Class and Additional Revolving Lenders under such Class ratably in accordance with their respective Revolving Commitments of such Class after giving effect to the addition of such Additional Revolving Commitments to such existing Revolving Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Commitments, (i) each ~~case~~Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each loan made under an Additional Revolving Commitment (each, ~~in such currency or currencies as the Borrower identifies in such notice~~ an “Additional Revolving Loan”) and each loan made under an New Revolving Commitment (each, a “New Revolving ~~Facility~~Loan” and, ~~any advance made by a Lender thereunder, a “New~~ together with the Additional Revolving ~~Loan”; and the commitments thereof~~Loans, the “Incremental Revolving Loans”) shall be deemed, for all purposes, Revolving Loans and (ii) each Additional Revolving Lender and each Revolving Lender with a New Revolving ~~Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ Commitment (each, a “New ~~Term Facility”; and any advance made by a Lender thereunder~~Revolving Lender” and, ~~a “New Term Loan”; and~~ together with the ~~commitments thereof~~Additional Revolving Lenders, the “~~New~~ Incremental Revolving Lenders”) shall become a Revolving Lender with respect to the applicable Incremental Revolving Commitment and all matters relating thereto. (c) On any Increased Amount Date (x) on which any Incremental Term ~~Commitment~~B Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and conditions, (i) each Lender with an Incremental Term B Commitment (each, an “Incremental Term B Lender”; ) of any Series shall make a term loan to the Borrower (each, an “Incremental Term B Loan”) in an amount equal to its Incremental Term B Commitment of such Series, and (ii) each Incremental Term B Lender of any Series shall become a Lender hereunder with respect to the Incremental Term B Commitment of such Series and the Incremental Term B Loans of such Series made pursuant thereto and (y) on which any Incremental Term C Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with an Incremental Term C Commitment (each, an “Incremental Term C Lender”) of any Series shall make a term letter of credit loan to the Borrower (each, an “Incremental Term C Loan” and, together with the Incremental Term B Loans and the Incremental Revolving ~~Credit~~ Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Commitment ~~Increase~~of such Series, and (ii) each Incremental Term C Lender of any 102 Series shall become a Lender hereunder with respect to the ~~New Revolving~~ Incremental Term C Commitment of such Series and the Incremental Term C Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans. (d) The terms and provisions of any Incremental Term B Commitments and any Incremental Term C Commitments and the respective related Incremental Term ~~Commitment Increase~~B Loans and Incremental Term C Loans, in each case effected pursuant to a Term B Increase or Term C Increase shall be substantially identical to the terms and provisions applicable to the Class of Term B Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, end of term, amendment, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term B Commitments and any Incremental Term C Commitments and the respective related Incremental Term B Loans and Incremental Term C Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term B Commitments or Incremental Term C Commitments may be paid in connection with such Incremental Term B Commitments or Incremental Term C Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related Term L/C Commitments, any excess cash collateral funded by such Incremental Term C Loans shall be withdrawn from the applicable funded term loan letter of credit cash collateral account. The terms and provisions of any Incremental Term B Commitments and any Incremental Term C Commitments and the respective related Incremental Term B Loans and Incremental Term C Loans of any Series not effected pursuant to a Term B Increase or Term C Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that: (i) (x) the applicable Incremental Term B Maturity Date of each Series shall be no earlier than the Initial Term B Maturity Date and (y) the applicable Incremental Term C Maturity Date of each Series shall be no earlier than the Initial Term C Maturity Date, provided, the ~~“New Loan~~ requirements of the foregoing clause (i) shall not apply to any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements; (ii) the Weighted Average Life to Maturity of the applicable Incremental Term B Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term B Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term B Loans); provided, the requirements of the foregoing clause (ii) shall not apply to any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements; (iii) the Incremental Term B Loans, Incremental Term B Commitments~~”;)~~ , Incremental Term C Loans and Incremental Term C Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in ~~an amount~~ any voluntary prepayment of any Class of Term B Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term B Loans hereunder; provided that if such Incremental Term B Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to ~~exceed~~ security with the ~~sum of:~~First Lien Obligations, such Incremental Term B Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term B Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), 103

Appears in 1 contract

Appears in 1 contract

Sources: Joinder Agreement and Amendment No. 6 (BrightSpring Health Services, Inc.)

Incremental Facilities. (a) The Borrower ~~may,~~ may at any time or from time to time after the ~~Closing~~ Effective Date, ~~upon~~ by written notice delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more new term loans which may be the same Class as any outstanding Class of Term Loans (a “Term Loan Increase”) and/or one or more new Classes of term loans (collectively, with any Term Loan Increase (and including the Tranche B Term Loans and Tranche B-1 Term Loans), the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments (the “Additional/Replacement Revolving Credit Commitments”, and together with the Incremental Term Loans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments” (including therein the Tranche B Term Loan Facility and Tranche B-1 Term Loan Facility, and the Tranche B Term Loan Commitments and the Tranche B-1 Term Loan Commitments, respectively)); provided that: 104 (i) after giving effect to the effectiveness of any Incremental Agreement referred to below, except as set forth in the proviso to clause (b) below, no Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving effect thereto), no Event of Default shall exist; provided that, with respect to any Incremental Agreement the primary purpose of which is to finance a Permitted Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the Capital Stock of, another Person, this clause (i) may be waived or omitted by Incremental Lenders holding more than 50% of the aggregate Incremental Commitments under such Incremental Agreement (other than with respect to the absence of any Event of Default under Section 11.1 or Section 11.5, which requirement may not be waived by such Incremental Lenders); and (ii) after giving effect to the incurrence of such Incremental Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and after giving effect to any Specified Transaction to be consummated in connection therewith), the Borrower and the Restricted Subsidiaries would be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the incurrence of any such Incremental Facilities, calculated on a Pro Forma Basis, in each case as if such Incremental Term Loans, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitments, as applicable, had been outstanding (and any related transactions had occurred) on the first day of such Test Period. (b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and following the Effective Date, the aggregate amount of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments shall not exceed, at the time of incurrence thereof and after giving Pro Forma Effect thereto and the use of the proceeds thereof, of the sum of (A) the greater of $500,000,000 and an amount equal to 100% of Consolidated EBITDA for the Test Period most recently then-ended for which the Section 9.1 Financials required by Section 9.1(a) or Section 9.1(b) have actually been delivered (minus, the aggregate principal amount of all Permitted Additional Debt incurred under clause (A) of the proviso to Section 10.1(v)(ii) at any time following the Effective Date), plus (B) an aggregate additional amount of Indebtedness, such that, after giving Pro Forma Effect to such incurrence or issuance (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitments then outstanding were fully drawn (except to the extent that such Incremental Revolving Credit Commitments refinanced or replaced all or any portion of the Revolving Credit Commitments outstanding on the Effective Date))) the Borrower would be in compliance with a Consolidated Secured Debt to Consolidated EBITDA Ratio as of the Test Period most recently ended on or prior to the incurrence of any such Incremental Facility, calculated on a Pro Forma Basis, as if such incurrence (and transaction) had occurred on the first day of such Test Period, that is no greater than 4.0:1.0 (the amounts under clause (A), the “Free and Clear Incremental Amount” and the amounts under clause (B), the “Incurrence-Based Incremental Amount” and, together with the Free and Clear Incremental Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be incurred without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, and 105 without regard to whether an Event of Default has occurred and is continuing, to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of incurrence of such Incremental Term Loans to prepay Term Loans in accordance with the procedures set forth in Section 5.2(a)(i) and subject to the payment of premiums set forth in Section 5.1(b), if applicable, (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided and (iii) the Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof in accordance with Section 1.2(m) (and, absent such election, shall be deemed to have used the Incurrence-Based Incremental Amount). Without limiting the foregoing, all or any portion of the Free and Clear Incremental Amount incurred concurrently with all or any portion of the Incurrence-Based Incremental Amount shall not count as Indebtedness for the purposes of calculating the applicable ratio pursuant to the Incurrence-Based Incremental Amount in accordance with Section 1.2(m). (c) (i) The Incremental Term Loans (I) shall rank pari passu in right of payment and of security with the Tranche B-1 Term Loans, (II) shall not mature earlier than the Tranche B-1 Term Loan Maturity Date, (III) shall not have a shorter Weighted Average Life to Maturity than the Tranche B-1 Term Loan Facility, (IV) shall have an amortization schedule (subject to clause (III) above), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided, however, that if the Effective Yield in respect of any Incremental Term Loans that rank pari passu in right of payment and security with the Tranche B-1 Term Loans as of the date of funding thereof and established on or prior to the Tranche B-1 Term Loan Maturity Date exceeds the Effective Yield in respect of the Tranche B-1 Term Loans by more than 0.50%, then the Applicable Margin in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Tranche B-1 Term Loans is equal to the Effective Yield of the Incremental Term Loans minus 0.50%; provided, further, to the extent that any change in the Effective Yield of the Tranche B-1 Term Loans is necessitated by this clause (c)(i) on the basis of an effective interest rate floor in respect of the Incremental Term Loans, the increased Effective Yield in the Tranche B-1 Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Effective Yield effected solely by increases in the interest rate floor(s) applicable to the Tranche B-1 Term Loans and (V) may otherwise have terms and conditions different from those of the Tranche B-1 Term Loans; provided that (except with respect to matters contemplated by subclauses (II), (III) and (IV) in above) any differences shall be reasonably satisfactory to the Administrative Agent. 106 (i) The Incremental Revolving Credit Commitment Increase shall be treated the same as the Revolving Credit Commitments (including with respect to maturity date thereof) and shall be considered to be part of the Revolving Credit Facility. (ii) The Additional/Replacement Revolving Credit Commitments (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, (ii) shall not mature earlier than the Revolving Credit Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Credit Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts and prepayment premiums as determined by the Borrower and the lenders of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments, (v) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to Swingline Loans and Letters of Credit with respect to the Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the ~~Person appointed~~ Revolving Credit Facility; provided that (except with respect to matters contemplated by clauses (ii), (iii), (iv) and (v) above) any differences shall be reasonably satisfactory to the Administrative Agent. (d) Each notice from the Borrower pursuant to ~~arrange~~ this Section 2.14 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender will have an ~~incremental Facility~~ obligation to make a portion of any Incremental Term Loan, no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Credit Commitment Increase and no existing Lender with an Revolving Credit Commitment will have an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that (i) the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided further that, solely with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, each Swingline Lender and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld) to such Additional ▇▇▇▇▇▇’s providing such Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender. 107 (e) Commitments in respect of Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, as appropriate, the other Credit Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental ~~Credit Facility”)~~ Facility Closing Date” (~~such Person (who may be (i)~~ including the ~~Administrative Agent~~Second Amendment Effective Date, ~~if it so agrees~~the Fourth Amendment Effective Date and, ~~or (ii) any other Person appointed by~~ the ~~Borrower after consultation with~~ Fifth Amendment Effective Date and the ~~Administrative Agent~~Seventh Amendment Effective Date)), ~~the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof~~ and the ~~proposed currency denomination thereof~~occurrence of any Credit Events pursuant to such Incremental Agreement, ~~request (i) an increase in the Commitments under any Revolving Tranche (which~~ shall be on subject to the ~~same terms as~~satisfaction of such conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans, ~~and become part of, the Revolving Tranche proposed to be increased) (each, a “~~Incremental Revolving Credit Commitment ~~Increase”~~Increases and Additional/Replacement Revolving Credit Commitments for any purpose not prohibited by this Agreement; provided that the proceeds of any Incremental Term Loans incurred, and any Additional/Replacement Revolving Credit Commitments provided, in either case as described in the proviso to Section 2.14(b), ~~(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~~ used in clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”), (iii) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice (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 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 accordance 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:~~terms thereof.

Appears in 1 contract

Sources: Seventh Amendment (LPL Financial Holdings Inc.)

Incremental Facilities. (a) The Borrower ~~may,~~ or any Subsidiary Guarantor may at any time or from time to time after the Closing Date, ~~upon~~ by written notice ~~by the Borrower~~ delivered to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (each, an “Incremental Credit Facility”) (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (i) ~~an increase~~ one or more additional Classes of term loans, which may be provided in Dollars, or in any Alternative Currency, as applicable, or additional term loans of the same Class of any existing Class of term loans, which may be provided in the ~~Commitments under any Revolving Tranche~~ same currency as the existing Class of term loans (~~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~~Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an ~~increase~~ “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments, which commitments may be in Dollars, in any Alternative Currency or any combination thereof (the “Additional/Replacement Revolving Credit Commitments”, and, together with the Incremental Term ~~Loan Tranche~~ Loans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, subject to Section 1.11, at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the proviso to clause (b) below, no Event of Default (or, in the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition, other Investment or similar transactions or any repayment, prepayment, redemption, repurchase, defeasance, satisfaction and discharge or other Refinancing or similar payment in respect of Indebtedness or Capital Stock and that, in the case of Capital Stock, requires irrevocable notice in advance thereof, no Event of Default under Section 11.1 or Section 11.5) shall have occurred and be continuing. (b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be, unless otherwise agreed by the Administrative Agent, in an aggregate principal amount that is not less than $5,000,000 or, in the case of Incremental Term Loans, Additional/Replacement Revolving Credit Commitments or an Incremental Revolving Credit Commitment Increase denominated in an Alternative Currency, €5,000,000, CAN$5,000,000, £5,000,000, A$5,000,000 or like amount in any other Alternative Currency, as applicable, (it being understood that such amount may be less than such amount if such amount represents all remaining availability under the limit set forth below) (and, unless otherwise agreed by the Administrative Agent, in minimum increments of $1,000,000 (or, in the case of Incremental Term Loans, Additional/Replacement Revolving Credit Commitments or an Incremental Revolving Credit Commitment Increase denominated in an Alternative Currency, €1,000,000, CAN$1,000,000, £1,000,000, A$1,000,000 or like amount in any other Alternative Currency, as applicable) in excess thereof), and the aggregate amount of (x) the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii) (including, without duplication, the amount of any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness Incurred under Section 10.1(u)(ii)) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (the “Incremental Limit”) (A) the Incremental Base Amount, plus (B) the Reallocated General Debt Basket Amount (provided that (X) after giving pro forma effect to such Incremental Facility then being Incurred under the Reallocated General Debt Basket Amount (and any Specified Transaction (including any prepayment, redemption or buyback of Indebtedness) or Specified Restructuring in connection therewith) (and assuming, solely for purposes of determining the Consolidated Senior Out First Lien Debt to Consolidated EBITDA Ratio under this proviso, that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding or being Incurred under this clause (~~which~~ B) are fully drawn), the Consolidated Senior Out First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of such Incremental Facility shall be ~~on the same terms as,~~ no greater than 3.75:1.00 and ~~become part of, the Term Loan Tranche proposed~~ (Y) any Incremental Facility incurred pursuant to ~~be increased hereunder (except as otherwise provided in~~ this clause (dB) ~~below~~ may, without limitation, constitute First Out Indebtedness, Senior Out Indebtedness or Third Out Indebtedness (as determined by the Borrower in its sole discretion (subject to the foregoing clause (X) of this proviso) and set forth in the applicable Incremental Agreement)), plus (C) the Reallocated Specified Transaction Tax Amount Basket (any Incremental Facility incurred pursuant to this clause (C) may, without limitation, constitute First Out Indebtedness, Second Out Indebtedness or Third Out Indebtedness (as determined by the Borrower in its sole discretion and set forth in the applicable Incremental Agreement)), plus (D) the Reallocated Specified Repurchase Debt Basket (provided that (x) the net proceeds of any Incremental Facility incurred pursuant to this clause (D) are used solely to consummate a Specified Repurchase or Exchange of Existing Indebtedness and (y) any Incremental Facility incurred pursuant to this clause (D) shall solely constitute a Third Out Obligation). (i) The Incremental Term Loans (A) shall (x) be secured only by all or a portion of the Collateral securing the Obligations on an equal priority basis with the Obligations with respect to ~~amortization)~~Lien priority, (y) not be guaranteed by any Subsidiary that is not a Credit Party and (~~each~~z) to the extent consisting of a First Lien Obligation, constitute either a ~~“Term Commitment Increase”~~First Out Obligation, Second Out Obligation or Third Out Obligation (as selected by the Borrower in its sole discretion, subject to the limitations set forth in the Incremental Limit), (~~iii~~B) shall not mature earlier than the ~~addition of one or more new revolving credit facilities~~ Latest Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans; provided, that, notwithstanding the foregoing to the ~~Facilities~~extent such Incremental Term Loans or Incremental Commitments are subject to Customary Escrow Provisions (so long as the Indebtedness that is released from escrow otherwise satisfies the requirements of clause (B) and this clause (C)), may be Incurred without regard to clause (B) and/or (C) of this Section 2.14(c)(i), (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates or payment-in-kind interest), pricing, interest rate margins, rate floors, fees, AHYDO Catch-Up Payments, funding discounts, original issue discounts, closing payments, maturity, currency types (subject, in ~~each case~~the case of currency types other than Dollars, in Euros and the Alternative Currencies, to the consent of the Administrative Agent, such ~~currency or currencies~~ consent not to be unreasonably withheld) and denominations, prepayment terms and premiums and other economic terms for the Incremental Term Loans as determined by the Borrower ~~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~~lenders of the Incremental Term Loans; (E) may be denominated in Dollars, Euros, or any other Alternative Currency or any combination thereof and (F) may otherwise have terms and conditions different from those of the ~~“New Revolving Commitment”~~Initial Term Loans; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and (ivE) above (except for covenants and other provisions or requirements applicable only to the periods after the Latest Maturity Date), any differences shall be, at the option of the Borrower, either (1) reasonably satisfactory to the Administrative Agent (at the Direction of the Required Lenders), (2) consistent with market terms and conditions, when taken as a whole, at the time of Incurrence or effectiveness of such Incremental Facility (as determined by the Borrower in good faith) or (3) not be materially more restrictive on the Borrower and its Subsidiaries than the terms of this Agreement, when taken as a whole and (y) the ~~addition of one or more new term loan facilities, in each case, in such currency or currencies~~ documentation governing any Incremental Term Loans may include any Previously Absent Covenant so long as the ~~Borrower identifies~~ Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Covenant for the benefit of each Credit Facility; provided, further, that, (1) for purposes of mandatory prepayments, any such Incremental Term Loans that are designated as First Out Obligations shall be treated no more favorably than the First Out Term Loans, except those that only apply after the Latest Maturity Date with respect to the Term Loans, and (2) for purposes of mandatory prepayments, any such Incremental Term Loans that are designated as Second Out Obligations shall be treated no more favorably than the Second Out Term Loans, except those that only apply after the Latest Maturity Date with respect to the Term Loans; provided, further, that no Incremental Term Loans may be incurred for the primary purpose of influencing the voting thresholds set forth in ~~such notice~~ this Agreement. (~~each~~ii) The Incremental Revolving Credit Commitment Increase shall be treated the same as the Class of Revolving Credit Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, ~~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~~ if required to consummate an Incremental Revolving Credit Commitment Increase, the ~~New~~ interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase (without any requirement to pay such fees to any existing Revolving Credit Lenders)); provided that, no Incremental Revolving Credit Commitment Increase (including any undrawn commitment thereunder) may be incurred for the primary purpose of influencing the voting thresholds set forth in this Agreement. (iii) The Additional/Replacement Revolving Credit Commitments (A) shall (x) be secured only by all or a portion of the Collateral securing the Obligations on an equal priority basis with the Obligations with respect to Lien priority, (y) not be guaranteed by any Subsidiary that is not a Credit Party and (z) to the extent consisting of a First Lien Obligation, constitute either a First Out Obligation, Second Out Obligation or Third Out Obligation (as selected by the Borrower in its sole discretion, subject to the limitations set forth in the Incremental Limit), (B) shall not mature earlier than the Revolving Credit Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (C) shall have interest rates (including through fixed interest rates or payments in-kind interest), pricing, interest margins, rate floors, fees, undrawn commitment fees, AHYDO Catch-Up Payments, funding discounts, original issue discounts, closing payments, currency types (subject, in the case of currency types other than Dollars, Euros and the ~~Term Commitment Increase~~other Alternative Currencies, to the consent of the Administrative Agent, such consent not to be unreasonably withheld) and denominations, prepayment terms and premiums and other economics and commitment reduction and termination terms as determined by the Borrower and the lenders of such Commitments, (D) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances, in the case of letters of credit, shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to the Swingline Loans and Letters of Credit with respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (E) may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and (E) above, any differences shall be, at the option of the Borrower, either (i) reasonably satisfactory to the Administrative Agent (at the Direction of the Required Lenders) (except for covenants and other provisions or requirements applicable only to the periods after the Latest Maturity Date), (ii) consistent with market terms and conditions, when taken as a whole, at the time of the Incurrence or effectiveness of such Incremental Facility (as determined by the Borrower in good faith) or (iii) not be materially more restrictive on the Borrower and its Subsidiaries than the terms of this Agreement, when taken as a whole and (y) the documentation governing any Additional/Replacement Revolving Credit Commitments may include any Previously Absent Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Covenant for the benefit of each Credit Facility (provided, further, however, that, if the applicable Previously Absent Covenant is a “~~New Loan~~ springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)); provided, further, that for purposes of mandatory prepayments, any such Additional/Replacement Revolving Credit Commitments that are designated as First Out Obligations shall be treated no more favorably than the Revolving Credit Facility, except those that only apply after the Latest Maturity Date with respect to the Revolving Credit Facility; provided, further, that no Additional/Replacement Revolving Credit Commitments may be incurred for the primary purpose of influencing the voting thresholds set forth in this Agreement. (d) Each notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount, currency types and denominations and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments~~”;) in an amount~~ . Incremental Term Loans which may be made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments which may be provided, subject to the prior written consent of the Borrower (not to ~~exceed~~ be unreasonably withheld or delayed), by any existing Lender (it being understood that no existing Lender will be required to participate in any Incremental Facility or any Incremental Commitments in respect thereof or make any loans in connection therewith) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that the ~~sum of:~~Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such L▇▇▇▇▇’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required unde

Appears in 1 contract

Sources: Super Senior Credit Agreement (MultiPlan Corp)

Incremental Facilities. (a) The ~~Borrower~~ Borrowers or any Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, ~~from time~~ by written notice to ~~time after~~ the ~~Closing Date~~Administrative Agent, ~~upon notice~~ request the establishment of one or more new tranches of term facilities denominated in Dollars or any other currency agreed to by the ~~Borrower to~~ applicable Borrower, the Administrative Agent and the ~~Person appointed by the Borrower to arrange an incremental~~ Lenders providing such New Term Loan Facility (each, an “Incremental Credit Facility”) (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the 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~~ New Term Loan ~~Tranche then outstanding (which shall be on~~ Facility”) and/or increase the ~~same terms as, and become part of~~principal amount of the Amendment No. 1 Term Loans, the Amendment No. 2 Term Loans, any Incremental Term Loans or, any Extended Term Loans or any other Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan ~~Tranche proposed~~ Facility, an “Incremental Term Facility” and, any Loans made pursuant to ~~be increased hereunder (except as otherwise provided in clause (d~~an Incremental Term Facility, “Incremental Term Loans”) ~~below with respect to amortization)) (each, a “Term Commitment Increase”), (iii)~~ and/or request the ~~addition~~ establishment of one or more new ~~revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any ~~advance made by a Lender~~ Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, a “~~New~~ Incremental Revolving ~~Loan~~Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”~~; 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 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 amount not ~~to exceed~~ in excess of the sum of:,

Appears in 1 contract

Sources: Credit Agreement (Acuren Corp)

Incremental Facilities. (a) The ~~Borrower~~ Borrowers or any Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, ~~from time~~ by written notice to ~~time after~~ the ~~Closing Date~~Administrative Agent, ~~upon notice~~ request the establishment of one or more new tranches of term facilities denominated in Dollars or any other currency agreed to by the ~~Borrower to~~ applicable Borrower, the Administrative Agent and the ~~Person appointed by the Borrower to arrange an incremental~~ Lenders providing such New Term Loan Facility (each, an “Incremental Credit Facility”) (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the 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~~ New Term Loan ~~Tranche then outstanding~~ Facility”) and/or increase the principal amount of the InitialAmendment No. 1 Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (~~which shall be on the same terms as, and become part of, the~~ together with any New Term Loan ~~Tranche proposed~~ Facility, an “Incremental Term Facility” and, any Loans made pursuant to ~~be increased hereunder (except as otherwise provided in clause (d~~an Incremental Term Facility, “Incremental Term Loans”) ~~below with respect to amortization)) (each, a “Term Commitment Increase”), (iii)~~ and/or request the ~~addition~~ establishment of one or more new ~~revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any ~~advance made by a Lender~~ Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, a “~~New~~ Incremental Revolving ~~Loan~~Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”~~; 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 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 amount not ~~to exceed~~ in excess of the sum of:,

Appears in 1 contract

Sources: First Amendment to Credit Agreement (Acuren Corp)

Incremental Facilities. (a) The Parent Borrower ~~may~~may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (including on a delayed draw basis) (the commitments thereto, ~~from time to time after~~ the ~~Closing Date~~“New Term Loan Commitments”), ~~upon notice~~ (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 (or the Dollar Equivalent thereof) individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date on which the Parent Borrower proposes that the New Loan Commitments shall be effective (the effective date, the “Increased Amount Date”), the Borrowers (including by appointing a Guarantor (other than Holdings) as a “Borrower”, subject to customary “know your customer” and equivalent procedures and compliance with Section 1.13 (which shall be deemed to apply to New Term Loan Commitments, mutatis mutandis)) to which such New Loan Commitments will be available and the currency in which such New Loan Commitments will be borrowed. Subject to Section 1.11(c), in connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Parent Borrower shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the ~~Person appointed by the Borrower to arrange an incremental Facility (each, an “Incremental Credit Facility”) (such~~ calculations and basis therefor. The Borrowers may approach any Lender or any Person (~~who~~ other than a natural Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may be elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) ~~the Administrative Agent, if it so agrees, or~~ (iiA) ~~any other Person appointed by the Borrower after consultation with the Administrative Agent~~subject to Section 1.11(c), ~~the “Incremental Arranger”~~no Event of Default under Section 11.1 or Section 11.5 (solely with respect to a Borrower) ~~specifying the proposed Borrower~~ shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable and (~~which may include a Co-Borrower)~~B) after giving effect to such New Loan Commitments, the ~~proposed amount thereof and the proposed currency denomination thereof, request (i~~condition in Section 7.1(b) ~~an increase in the Commitments under any Revolving Tranche (which~~ shall be on satisfied (it being understood that all references to “the ~~same terms as~~date of such Credit Event” or similar language in such Section 7.1 shall be deemed to refer to the applicable date determined in accordance with Section 1.11(c)); provided, ~~and become part of~~further, that the ~~Revolving Tranche proposed to be increased~~lenders providing such New Loan Commitments may modify and/or waive the requirement regarding the condition in Section 7.1(b) ~~(each, a “Revolving Credit Commitment Increase”)~~for all purposes hereunder, (ii) ~~an increase in any Term~~ the New Loan ~~Tranche then outstanding (~~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 on recorded in the ~~same terms as,~~ Register and ~~become part of,~~ shall be subject to the ~~Term Loan Tranche proposed to be increased hereunder (except as otherwise provided~~ requirements set forth in ~~clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”~~Section 5.4(e), (iii) the ~~addition~~ 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 ~~one~~ 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 ~~more new revolving credit facilities~~ (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 ~~Facilities~~satisfaction of the foregoing terms and conditions, in (a) with respect to New Revolving Credit Commitments, each ~~case, in~~ of the Lenders with Revolving Credit Commitments of such ~~currency or currencies as the Borrower identifies in such notice~~ Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving ~~Facility”~~ Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, ~~any advance~~ each Loan made by under a ~~Lender thereunder,~~ New Revolving Credit Commitment (a “New Revolving Credit Loan”; ) and ~~the commitments thereof~~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 ~~Commitment~~Loan Lender and each Lender with an Additional Revolving Credit Commitment (together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and the Letter of Credit Issuer shall have consented (ivnot to be unreasonably withheld, delayed or conditioned) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the ~~addition~~ extent such consent, if any, would be required under Section 13.6(a) for an assignment of ~~one~~ Revolving Loans or ~~more new term loan facilities~~Revolving Credit Commitments, in as applicable, to such Lender or Incremental Revolving Loan Lender. (c) On or after the date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~case, in such currency or currencies as the Borrower identifies in such notice~~ Lender with a New Term Loan Commitment (each, a “New Term ~~Facility~~Loan Lender”~~; and~~ ) of any ~~advance made by~~ Series shall make a ~~Lender thereunder~~Loan to the Borrowers, as specified in the applicable Notice of Borrowing, (a “New Term Loan~~”; and~~ ” and, together with the ~~commitments thereof~~Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount up to its New Term ~~Commitment~~Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Parent Borrower; provided that (i) subject to the Inside Maturity Exceptions, the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date (as in effect at the time of such incurrence or obtaining of a commitment with respect thereto); (ii) subject to (1) New Term Loans incurred on or after the date that is 6 months after the ClosingAmendment No. 5 Effective Date, (2) New Term Loans scheduled to mature on or after the date that is one year after the Initial Term Loan Maturity Date, (3) any New Term Loans originally incurred in reliance upon the Shared Incremental Amount or the Prepayment and Extension Amount, (4) any New Term Loans incurred in connection with a Permitted Acquisition or other permitted Investment or to refinance Indebtedness incurred in connection with a Permitted Acquisition or other permitted Investment, (5) any New Term Loans having an aggregate principal amount not exceeding the greater of $191,000,000210,800,000 and 100% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as selected by the Parent Borrower and (6) any New Term Loans that constitutes a bridge facility (clauses (1), (2), (3), (4), (5) and (6), collectively, the “MFN Exceptions”); and ~~together~~ (v) to the extent such terms and documentation are materially more favorable to the New Term Loan Lenders than the terms of the existing Initial Term Loans or thethen existing Amendment No. 35 Term Loans (except to the extent permitted (or, for the avoidance of doubt, not prohibited) by clause (i), (ii), (iii) or (iv) above), they shall be either (A) reasonably satisfactory to the Administrative Agent (provided that no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Initial Term Loan Maturity Date or if such covenants or other provisions are added for the benefit of the Initial Term Loans or the Amendment No. 35 Term Loans, as applicable), (B) then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment or establishment of initial terms with respect thereto)) for the applicable type of Indebtedness or (C) applicable only to periods after the Initial Term Loan Maturity Date. (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Amendment No. 4 Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Revolving Credit ~~Commitment Increase, the New Revolving Commitments~~ Loans and the Term ~~Commitment Increase~~Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Amendment No. 4 Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments, (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to Section 3.12 to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that the Borrowers shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (viii) to the extent that any New Term Loan does not form a part of the same Class with the applicable outstanding Class(es) of Term Loans for United States federal income tax purposes, such New Term Loan will have a separate CUSIP, LIN or any other security identifier, and (f) [Reserved]. (g) (i) The Parent Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(g). In order to establish any Extended Term Loans, the ~~“New~~ Parent Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Commitments~~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 ~~an amount not~~ good faith by the Parent Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to ~~exceed~~ later dates than the ~~sum of:~~scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(g) below), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment or (z) no consent of any Lender or any other Person shall be required to incorporate any more restrictive term for the benefit of the applicable Existing Term Loan Class. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Cla

Appears in 1 contract

Sources: Credit Agreement (Mirion Technologies, Inc.)

Incremental Facilities. (a) The Borrower ~~may, from time to time after the Closing Date, upon~~ may by written notice ~~by the Borrower~~ to the Administrative Agent ~~and~~ elect to request the ~~Person appointed by~~ establishment of one or more (w) additional term loans, which may be of the ~~Borrower to arrange an incremental Facility~~ same Class as any then- existing Term B Loans (~~each, an~~ a “~~Incremental Credit Facility~~Term B Increase”) or a separate Class of Term B Loans (~~such Person (who may be (i)~~ the ~~Administrative Agent~~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 Borrower after consultation with the Administrative Agent)~~collectively, 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 IncreaseTerm B Commitments”), (iix) ~~an increase in any Term Loan Tranche then outstanding~~ additional term loans the proceeds of which are used to support a letter of credit facility (term “letter of credit” loans), which ~~shall~~ may be on of the same ~~terms as~~Class as any then-existing term “letter of credit” loans or a separate Class of term “letter of credit” loans (the commitments for additional term loans of the same Class or a separate Class, ~~and become part of~~collectively, the “Incremental 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~~C Commitments”), (~~iii~~y) ~~the addition~~ commitments consisting of one or more ~~new revolving~~ letter of credit ~~facilities to~~ facilities, which may be of the ~~Facilities~~same Class as any then-existing Stand-Alone Letter of Credit Commitments (the commitments thereto, ~~in each case~~the “Additional Stand-Alone Letter of Credit Commitments”) or a separate Class of letter of credit commitments (the commitments thereto, ~~in such currency or currencies as~~ the ~~Borrower identifies in such notice (each, a~~ “New ~~Revolving Facility~~Stand-Alone Letter of Credit Commitments” and, together with the Additional Stand-Alone Letter of Credit Commitments, the “Incremental Letter of Credit Commitments”) and/or (z) revolving credit commitments, which may be of the same Class as any ~~advance made by a Lender thereunder, a “New~~ then- existing Revolving ~~Loan”; and~~ Commitments (the commitments ~~thereof~~thereto, the “Additional Revolving Commitments”) or a separate Class of Revolving Commitments (the commitments thereto, the “New Revolving ~~Commitment”) and (iv)~~ Commitments” and, together with the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereofAdditional Revolving Commitments, the “~~New Term Commitment~~Incremental Revolving Commitments”; ~~and~~ together with the ~~Revolving Credit Commitment Increase~~Incremental Term B Commitments, the ~~New Revolving Commitments and the~~ Incremental Term ~~Commitment Increase, the “New Loan Commitments”;) in an amount not to exceed the sum of:~~C

Appears in 1 contract

Incremental Facilities. (a) The Borrower ~~may, from time to time after the Closing Date, upon~~ may by written notice ~~by the Borrower~~ to the Administrative Agent elect to request the establishment of one or more (x) additional term loans, which may be of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term Loan Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Loan Increase”) or a separate Class of Term C Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term C Loan Commitments”) and/or (z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loan Commitments and the ~~Person appointed~~ Incremental Term C Loan Commitments, the “Incremental Loan Commitments”), by an aggregate amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.1(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the ~~Borrower to arrange an incremental Facility~~ Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “~~Incremental Credit Facility~~Increased Amount Date”) ~~(such~~ on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (~~who~~ other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments may be elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) unless the ~~Administrative Agent~~immediately succeeding clause (y) is applicable, ~~if it so agrees,~~ no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (iiy) ~~any~~ if such Incremental Loan Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other ~~Person appointed~~ provisions of Section 11 as may otherwise be required by the ~~Borrower~~ Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after ~~consultation with the Administrative Agent), the “~~giving effect to such Incremental ~~Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof~~ Loan Commitment and the ~~proposed currency denomination thereof, request (i) an increase in the Commitments under~~ borrowing of 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”)~~Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Loan Commitments, on an ~~increase in any Term Loan Tranche then outstanding (which~~ Increased Amount Date, there shall be on no requirement for the ~~same terms as,~~ Borrower to bring down the representations and ~~become part of,~~ warranties under 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”)~~Credit Documents, (iii) the ~~addition of~~ Incremental Loan Commitments shall be effected pursuant to one or more ~~new revolving credit facilities~~ Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the ~~Facilities~~requirements set forth in Section 5.4(d) and (e), ~~in each case, in such currency or currencies as~~ and (iv) the Borrower ~~identifies~~ shall make any payments required pursuant to Section 2.11 in connection with the Incremental Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such ~~notice~~ increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Loan Increase, a part of the series of existing Term C Loans subject to such increase, and (c) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”). (b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to New Revolving Credit Commitments, each of the Revolving Credit Lenders with an existing Revolving Credit Commitment of the Class being increased by such New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each Revolving Credit Lender with a New Revolving Credit Commitment of such Class (each, a “New Revolving ~~Facility” and~~Loan Lender”), ~~any advance made by a Lender thereunder, a “~~and each of such New Revolving ~~Loan”;~~ Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the ~~commitments~~ percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Credit Lender holding Revolving Credit Loans (including each such New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit Commitments of all Revolving Credit Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the “Revolving Credit Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders under such Class and New Revolving ~~Commitment”) and (iv)~~ Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the addition of ~~one or more new term~~ such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan ~~facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ 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 ~~Facility~~Loan Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and conditions, (i) each Lender with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”; ) of any Series shall make a term loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series, and (ii) each Incremental Term Loan Lender of any ~~advance made by~~ Series shall become a Lender ~~thereunder~~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 “~~New~~ 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 ~~commitments thereof~~Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the Incremental Term C Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans. (d) The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, in each case effected pursuant to a Term Loan Increase or Term C Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term Loan Commitments or Incremental Term C Loan Commitments may be paid in connection with such Incremental Term Loan Commitments or Incremental Term C Loan Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related term letter of credit commitments, any excess cash collateral funded by such Incremental Term C Loans shall be withdrawn from the applicable funded term loan letter of credit cash collateral account. Any Incremental Loans incurred as a Term Loan Increase or Term C Loan Increase, as applicable, shall be fungible for the U.S. federal income tax purposes with the existing Class of Term Loans or Term C Loans, as applicable, proposed to be increased thereby. The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans of any Series not effected pursuant to a Term Loan Increase or Term C Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that: (i) [reserved]; (ii) [reserved]; (iii) the Incremental Term Loans, Incremental Term Loan Commitments, Incremental Term C Loans and Incremental Term C Loan Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to security with the First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable); (iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental Term Loans or Incremental Term C Loans shall be determined by the Borrower and the lender(s) thereunder; provided, however, that, with respect to any broadly syndicated Dollar-denominated Incremental Term Loans or Incremental Term C Loans made under Incremental Term Loan Commitments or Incremental Term C Loan Commitments, if the Yield in respect of any Incremental Term Loans or Incremental Term C Loans that rank pari passu in right of payment and security with the Initial Term Loans, the Initial Term C Loans, the 2016 Incremental Term Loans and the 20182018 Incremental Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans, or 2018the 2018 Incremental Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable Term SOFR Margin, as applicable, in respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, shall be adjusted so that the Yield in respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, is equal to the Yield in respect of such Incremental Term Loans or Incremental Term C Loans minus 0.50%; provided, further, to the extent any change in the Yield of the Initial Term Loans, the Initial Term C Loans, the 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, is necessitated by this clause (iv) on the basis of an effective interest rate floor in respect of the Incremental Term Loans or Incremental Term C Loans, the increased Yield in the Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, shall (unless otherwise agreed in writing by the Borrower) have such increase in the Yield effected solely by increases in the interest rate floor(s) applicable to the Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable (this clause (iv), the “~~New Term Commitment~~MFN Adjustment”); and ~~together with~~ provided, further, that the ~~Revolving Credit Commitment Increase~~MFN Adjustment shall not apply to Incremental Term Loans or Incremental Term C Loans (a) that mature on or after the twelve month anniversary of the 2018 Incremental Term Loan Maturity Date, (b) that are incurred after the ~~New Revolving Commitments and~~ twelve month anniversary of the ~~Term Commitment Increase~~Fifteenth Amendment Effective Date, (c) that are incurred in reliance on the Incremental Fixed Dollar Basket or (d) the proceeds of which are used to consummate a Permitted Acquisition (clauses (a) through (d) of this proviso, collectively, the “~~New Loan Commitments~~MFN Exceptions”~~;) in an amount not to exceed the sum of:~~); and (v) all other terms of any Incrementa

Appears in 1 contract

Incremental Facilities. (a) The Borrower ~~may, from time to time after the Closing Date, upon~~ may by written notice ~~by the Borrower~~ to the Administrative Agent elect to request the establishment of one or more (x) additional term loans, which may be of the same Class as any then-existing Term B Loans (a “Term B Increase”) or a separate Class of Term B Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term B Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Increase”) or a separate Class of Term C Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term C Commitments”) and/or (z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Commitments (the commitments thereto, the “Additional Revolving Commitments”) or a separate Class of Revolving Commitments (the commitments thereto, the “New Revolving Commitments” and, together with the Additional Revolving Commitments, the “Incremental Revolving Commitments”; together with the Incremental Term B Commitments and the ~~Person appointed~~ Incremental Term C Commitments, the “Incremental Commitments”), by an aggregate principal amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the ~~Borrower to arrange an incremental Facility~~ Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “~~Incremental Credit Facility~~Increased Amount Date”) ~~(such~~ on which the Borrower proposes that the Incremental Commitments shall be effective. The Borrower may approach any Lender or any Person (~~who~~ other than a natural Person) to provide all or a portion of the Incremental Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Commitments may be elect or decline, in its sole discretion, to provide an Incremental Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Commitment. In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the ~~Administrative Agent~~immediately succeeding clause (y), ~~if it so agrees,~~ no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Commitments and the borrowing of any Incremental Loans thereunder or (iiy) ~~any~~ if such Incremental Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other ~~Person appointed~~ provisions of Section 11 as may otherwise be required by the ~~Borrower~~ Lenders providing the applicable Incremental Commitment immediately before or immediately after ~~consultation with the Administrative Agent), the “~~giving effect to such Incremental ~~Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof~~ Commitment and the ~~proposed currency denomination thereof, request (i) an increase in the Commitments under~~ borrowing of 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”)~~Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Commitments, on an ~~increase in any Term Loan Tranche then outstanding (which~~ Increased Amount Date, there shall be on no requirement for the ~~same terms as~~Borrower to bring down the representations and warranties under the Credit Documents unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Commitments (provided that, ~~and become part of~~in the case of Incremental Loans or Incremental Commitments used to finance a Permitted Acquisition or other acquisition constituting a permitted Investment, only the ~~Term Loan Tranche proposed~~ Specified Representations (conformed as necessary for such acquisition) shall be required to be ~~increased hereunder (except as otherwise provided~~ true and correct in ~~clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”~~all material respects if requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Commitments), (iii) the ~~addition of~~ Incremental Commitments shall be effected pursuant to one or more ~~new revolving credit facilities~~ Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the Incremental Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any Incremental Term B Loans made on an Increased Amount Date shall be designated (x) a separate series of Term B Loans or (y) in the case of a Term B Increase, a part of the series of existing Term B Loans subject to such increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Increase, a part of the series of existing Term C Loans subject to such increase, and (c) any Incremental Revolving Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Commitments or (y) in the case of a Additional Revolving Commitment, a part of the series of existing Revolving Commitments subject to such increase (such new or existing series of Term B Loans, Term C Loans or Revolving Commitments, each, a “Series”). (b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to Additional Revolving Commitments, each of the Revolving Lenders with an existing Revolving Commitment of the Class being increased by such Additional Revolving Commitments shall automatically and without further act be deemed to have assigned to each Revolving Lender with a Additional Revolving Commitment of such Class (each, an “Additional Revolving Lender”), and each of such Additional Revolving Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such Revolving Lender’s participations hereunder in outstanding Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Lender holding Revolving Loans (including each such Additional Revolving Lender), as applicable, will equal the percentage of the aggregate Total Revolving Commitments of all Revolving Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the Revolving Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Loans of such Class will be held by existing Revolving Lenders under such Class and Additional Revolving Lenders under such Class ratably in accordance with their respective Revolving Commitments of such Class after giving effect to the addition of such Additional Revolving Commitments to such existing Revolving Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Commitments, (i) each ~~case~~Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each loan made under an Additional Revolving Commitment (each, ~~in such currency or currencies as the Borrower identifies in such notice~~ an “Additional Revolving Loan”) and each loan made under an New Revolving Commitment (each, a “New Revolving ~~Facility~~Loan” and, ~~any advance made by a Lender thereunder, a “New~~ together with the Additional Revolving ~~Loan”; and the commitments thereof~~Loans, the “Incremental Revolving Loans”) shall be deemed, for all purposes, Revolving Loans and (ii) each Additional Revolving Lender and each Revolving Lender with a New Revolving ~~Commitment”) and (iv) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ Commitment (each, a “New ~~Term Facility”; and any advance made by a Lender thereunder~~Revolving Lender” and, ~~a “New Term Loan”; and~~ together with the ~~commitments thereof~~Additional Revolving Lenders, the “~~New~~ Incremental Revolving Lenders”) shall become a Revolving Lender with respect to the applicable Incremental Revolving Commitment and all matters relating thereto. (c) On any Increased Amount Date (x) on which any Incremental Term ~~Commitment~~B Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and conditions, (i) each Lender with an Incremental Term B Commitment (each, an “Incremental Term B Lender”; ) of any Series shall make a term loan to the Borrower (each, an “Incremental Term B Loan”) in an amount equal to its Incremental Term B Commitment of such Series, and (ii) each Incremental Term B Lender of any Series shall become a Lender hereunder with respect to the Incremental Term B Commitment of such Series and the Incremental Term B Loans of such Series made pursuant thereto and (y) on which any Incremental Term C Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with an Incremental Term C Commitment (each, an “Incremental Term C Lender”) of any Series shall make a term letter of credit loan to the Borrower (each, an “Incremental Term C Loan” and, together with the Incremental Term B Loans and the Incremental Revolving ~~Credit~~ Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Commitment ~~Increase~~of such Series, and (ii) each Incremental Term C Lender of any Series shall become a Lender hereunder with respect to the ~~New Revolving~~ Incremental Term C Commitment of such Series and the Incremental Term C Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans. (d) The terms and provisions of any Incremental Term B Commitments and any Incremental Term C Commitments and the respective related Incremental Term ~~Commitment Increase~~B Loans and Incremental Term C Loans, in each case effected pursuant to a Term B Increase or Term C Increase shall be substantially identical to the terms and provisions applicable to the Class of Term B Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, end of term, amendment, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term B Commitments and any Incremental Term C Commitments and the respective related Incremental Term B Loans and Incremental Term C Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term B Commitments or Incremental Term C Commitments may be paid in connection with such Incremental Term B Commitments or Incremental Term C Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related Term L/C Commitments, any excess cash collateral funded by such Incremental Term C Loans shall be withdrawn from the applicable funded term loan letter of credit cash collateral account. The terms and provisions of any Incremental Term B Commitments and any Incremental Term C Commitments and the respective related Incremental Term B Loans and Incremental Term C Loans of any Series not effected pursuant to a Term B Increase or Term C Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that: (i) (x) the applicable Incremental Term B Maturity Date of each Series shall be no earlier than the Initial Term B Maturity Date and (y) the applicable Incremental Term C Maturity Date of each Series shall be no earlier than the Initial Term C Maturity Date, provided, the ~~“New Loan~~ requirements of the foregoing clause (i) shall not apply to any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements; (ii) the Weighted Average Life to Maturity of the applicable Incremental Term B Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term B Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term B Loans); provided, the requirements of the foregoing clause (ii) shall not apply to any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements; (iii) the Incremental Term B Loans, Incremental Term B Commitments~~”;)~~ , Incremental Term C Loans and Incremental Term C Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term B Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term B Loans hereunder; provided that if such Incremental Term B Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to security with the First Lien Obligations, such Incremental Term B Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term B Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Restricted Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or, if secured by any of the Collateral, rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured by Liens on any of the Collateral, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement that reflects market terms or is otherwise reasonably satisfactory to the Borrower and the Administrative Agent, as applicable); (iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental Term B Loans or Incremental Term C Loans shall be determined by the Borrower and the lender(s) thereunder; provided, however, that, with respect to any Dollar denominated Incremental Term B Loans or Incremental Term C Loans made under Incremental Term B Commitments or Incremental Term C Commitments that (a) that mature within twelve months of the Term B Maturity Date or the Term C Maturity Date, as applicable and (b) rank pari passu in right of payment and security with the Initial Term B Loans or the Initial Term C Loans, as applicable, if the Yield in respect of any such Incremental Term B Loans or Incremental Term C Loans, as of the date of funding thereof exceeds the Yield in respect of any Initial Term B Loans (with original issue discount for purposes of determining such Yield to be based on original issue discount on the Closing Date) or Initial Term C Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable Term SOFR Margin, as applicable, in respect of such Initial Term B Loans or Initial Term C Loans, as applicable, shall be adjusted so that the Yield in respect of such Initial Term B Loans or Initial Term C Loans, as applicable, is equal to the Yield in respect of such Incremental Term B Loans (with original issue discount for purposes of determining such Yield to be based on original issue discount on the Closing Date) or Incremental Term C Loans minus 0.50%; provided, further, to the extent any change in the Yield of the Initial Term B Loans or the Initial Term C Loans, as applicable, is necessitated by this clause (iv)(iv) on the basis of an ~~amount not to exceed~~ effective interest rate floor in respect of the ~~sum of:~~Incremental Term B Loans or Incremental

Appears in 1 contract

Incremental Facilities. (a) The Borrower may, from time to time after the Closing Date, upon notice by the Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (each, an “"Incremental Credit Facility”") (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “"Incremental Arranger”") specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the 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 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 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: (i) the greater of (A) $204,000,000 and (B) 100.0% of Four Quarter Consolidated EBITDA plus (ii) the aggregate amount of Indebtedness permitted to be incurred pursuant to Section 7.01(l) and, if such Indebtedness is secured, clause (25) of the definition of Permitted Liens that, in each case are unutilized and reallocated to this Cash-Capped Incremental Facility (provided, that any Indebtedness incurred pursuant to this clause (w)(ii) will reduce availability under Section 7.01(1) and, if secured, clause (25) of the definition of Permitted Liens), minus (iii) the amount of any Indebtedness previously incurred in reliance on this clause (w) as Incremental Facilities pursuant to Section 2.14, Incremental Equivalent Debt pursuant to Section 2.15, Ratio Debt, Ratio Acquisition Debt or otherwise (and not redesignated as incurred under any other provision of the Incremental Amount in accordance with this Agreement) (the "Cash-Capped Incremental Facility"),

Appears in 1 contract

Sources: Credit Agreement (Instructure Holdings, Inc.)

Incremental Facilities. (ai) 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 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~~may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment and (ii) any entity providing all or a portion of the Incremental Commitments other than a Lender, ~~from time to time after the Closing Date~~an affiliate of a Lender or an Approved Fund, ~~upon notice by the Borrower~~ shall be reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed). (b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that (i) except for any Incremental Loan Commitment in connection with the DTA Acquisition and the ~~Person appointed~~ Tranche A Term Loans, no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments, (ii) except for any Incremental Loan Commitment in connection with the DTA Acquisition or the Avis Europe Acquisition, the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof), (iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans, (iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, (v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the ~~Borrower~~ Administrative Agent based on a four-year life to ~~arrange~~ maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, (vi) (x) with respect to the Term Loans (other than the Tranche A Term Loans, and any other Incremental Tranche A Term Loans and the Tranche B Term Loans), if the final maturity date of any Incremental Term Loans is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (except for any Incremental Tranche A Term Loans) (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans, and any other Incremental Tranche A Term Loans and 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 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 the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and (viii) the Increment Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental ~~Facility~~ 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 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 ~~Credit Facility~~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 ~~Person~~ Incremental Synthetic L/C Facility (~~who~~ an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto. (f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. Notwithstanding anything in this Agreement to the contrary, (i) the ~~Administrative Agent, if it so agrees, or~~ references to the Term Loans in this Section 2.23 shall be deemed to include the Replacement Term Loans and (ii) ~~any other Person appointed by~~ the ~~Borrower after consultation with~~ references to the ~~Administrative Agent)~~Revolving Commitments or the Revolving Loans in this Section 2.23 shall be deemed to include the Extended Revolving Commitments or the Extended Revolving Loans, as applicable. For the ~~“Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower)~~avoidance of doubt, ~~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~~ A Term Loans constitute Incremental Tranche ~~proposed to be increased) (each, a “Revolving Credit Commitment Increase”)~~A Term Loans, (ii) ~~an increase in any~~ the Tranche B Term ~~Loan Tranche then outstanding (which shall be on the same terms as~~Loans constitute Incremental Term Loans, 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~~Tranche A Term Lenders shall be Incremental Term Loan Lenders, in each case, ~~in such currency or currencies as the Borrower identifies in such notice (each, a “New Revolving Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”;~~ for all purposes of this Agreement 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 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 other Loan ~~Commitments”;) in an amount not to exceed the sum of:~~Documents.

Appears in 1 contract

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

Appears in 1 contract

Sources: Credit Agreement (Krispy Kreme, Inc.)

Incremental Facilities. (a) The Borrower may, ~~from time~~ by written notice to ~~time after~~ Administrative Agent, elect to request the ~~Closing Date~~establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, ~~upon notice~~ the “New Term Loan Commitments”), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”) by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date), which may be incurred in Dollars, Euros or Pounds Sterling. In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the ~~Person appointed by~~ calculations and basis therefor and, subject to reclassification as set forth in Section 10.1, classify such Indebtedness as being incurred pursuant to the applicable clause(s) of the definition of Maximum Incremental Facilities Amount. The Borrower ~~to arrange an incremental Facility (each, an “Incremental Credit Facility”) (such~~ may approach any Lender or any Person (~~who~~ other than a natural Person) to provide all or a portion of the New Loan Commitments, subject, if applicable, to the proviso to Section 2.14(b); provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, on each applicable Increased Amount Date (subject to Section 1.12), such New Loan Commitments shall be subject to (i) ~~the Administrative Agent, if it so agrees,~~ no Event of Default (except in connection with an acquisition or investment (~~ii)~~ including any ~~other Person appointed by the Borrower after consultation with the Administrative Agent~~Permitted Acquisition or Investment), ~~the “Incremental Arranger”~~no Event of Default under Section 11.1 or Section 11.5) ~~specifying the proposed Borrower (which may include a Co-Borrower)~~shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, ~~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~~as applicable, and ~~become part of, the Revolving Tranche proposed~~ subject to ~~be increased) (each, a “Revolving Credit Commitment Increase”)~~Section 1.12, (ii) ~~an increase in any Term~~ the New Loan ~~Tranche then outstanding (~~Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be on recorded in the ~~same terms as~~Register and shall be subject to the requirements set forth in Section 5.4(e), 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~~ Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans shall, at the election of ~~one~~ the Borrower and agreed to by Lenders providing such New Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or ~~more new revolving credit facilities~~ (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement. (b) Incremental Revolving Credit Commitments shall be subject to the ~~Facilities~~satisfaction of the following terms and conditions, in (a) with respect to New Revolving Credit Commitments, each ~~case, in~~ of the Lenders with Revolving Credit Commitments of such ~~currency or currencies as the Borrower identifies in such notice~~ Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving ~~Facility”~~ Loan Lender”) and each of the new Revolving Loan Lenders shall purchase from each of the Lenders with revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such new Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, ~~any advance~~ each Loan made by under a ~~Lender thereunder,~~ New Revolving Credit Commitment (a “New Revolving Credit Loan”; ) and ~~the commitments thereof~~each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with new Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Loans and (ii) each New Revolving ~~Commitment~~Loan Lender and each Lender with an Additional Revolving Credit Commitment (each, an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and the Letter of Credit Issuer shall have consented (ivnot to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the ~~addition~~ extent such consent, if any, would be required under Section 13.6(b) for an assignment of ~~one~~ Revolving Loans or ~~more new term loan facilities~~Revolving Credit Commitments, in as applicable, to such Lender or Incremental Revolving Loan Lender. (c) New Term Loan Commitments of any Series shall be subject to the satisfaction of the foregoing and following terms and conditions, (i) each ~~case, in such currency or currencies as the Borrower identifies in such notice~~ Lender with a New Term Loan Commitment (each, a “New Term ~~Facility~~Loan Lender”~~; and~~ ) of any ~~advance made by~~ Series shall make a ~~Lender thereunder,~~ Loan to the Borrower (a “New Term Loan~~”; and~~ ” and, together with the ~~commitments thereof~~Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term ~~Commitment~~Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Tranche B Term Loan Maturity Date; (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the then existing Tranche B-4-5 Term Loans as calculated without giving effect to any prepayments made in connection with the Tranche B-4-5 Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) above, amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that only during the period commencing on the Amendment No. 7 Effective Date and ending on the six-month anniversary of the Amendment No. 7 Effective Date, if the Effective Yield for SOFR Loans or ABR Loans in respect of broadly syndicated floating rate New Term Loans denominated in Dollars that are secured by the Collateral on a pari passu basis with the Tranche B-4 Term Loans (other than any New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment) exceeds the Effective Yield for SOFR Loans or ABR Loans in respect of the then existing Tranche B-4 Term Loans denominated in Dollars by more than 0.50%, the Applicable Margin for SOFR Loans or ABR Loans in respect of such then existing Tranche B-4 Term Loans shall be adjusted so that the Effective Yield in respect of such then existing Tranche B-4 Term Loans is equal to the Effective Yield for SOFR Loans or ABR Loans in respect of the New Term Loans minus 0.50% (the terms of this proviso to this clause (iii), the “MFN Protection”); provided that the MFN Protection shall not apply to (I) New Term Loans (as selected by the Borrower) in an amount up to the greater of (A) $1,170 million and (B) 200.0% of Consolidated EBITDA for the Test Period most recently ended on or prior to such date of determination (measured as of such date), (II) any New Term Loans incurred pursuant to clauses (ii) or (iii) of the definition of “Maximum Incremental Facilities Amount” or (III) any New Term Loans that mature later than the Tranche B Term Loan Maturity Date; and ~~together~~ (iv) to the extent such terms and documentation are not consistent with the then existing Tranche B-4-5 Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Term Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank equal in right of payment and of security with the Revolving Credit ~~Commitment Increase, the New Revolving Commitments~~ Loans and the Term ~~Commitment Increase~~Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments, (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the ~~“New Loan~~ maturity date of the Incremental Revolving Credit Commitments~~”;)~~ , and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, subject to the provisions of Section 3.12 and Section 3A.12 to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 3.12, without giving effect to changes thereto on an ~~amount not~~ earlier maturity date with respect to ~~exceed the sum of:~~Letters of Credit theretofore incurred or issued in respect of such Series),

Appears in 1 contract

Sources: First Lien Credit Agreement (BrightSpring Health Services, Inc.)

Incremental Facilities. (a) ~~The~~ Any Borrower ~~may~~(including any Additional Borrower) or any other Guarantor may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, ~~from time to time after~~ the ~~Closing Date~~“New Term Loan Commitments”), ~~upon notice~~ (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving LoanCredit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the ~~Borrower~~ Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date), which may be incurred in Dollars, Euros or Sterling. In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrowers shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the ~~Person appointed by the Borrower~~ calculations and basis therefor and, subject to ~~arrange an incremental Facility (each~~reclassification as set forth in Section 10.1, ~~an “Incremental Credit Facility”) (~~classify such ~~Person (who may be~~ Indebtedness as being incurred under clause (i) ~~the Administrative Agent, if it so agrees,~~ or clause (ii) of the definition of “Maximum Incremental Facilities Amount”. The Borrowers may approach any Lender or any Person (other ~~Person appointed by~~ than a natural Person) to provide all or a portion of the ~~Borrower after consultation with~~ New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the ~~Administrative Agent)~~New Loan Commitments may elect or decline, ~~the “Incremental Arranger”) specifying the proposed Borrower (which may include~~ in its sole discretion, to provide a ~~Co-Borrower)~~New Loan Commitment. Subject to Section 1.12 in each case, ~~the proposed amount thereof and the proposed currency denomination thereof, request~~ such New Loan Commitments shall be subject to (i) ~~an increase in~~ no Event of Default under Section 11.1 or Section 11.5 (with respect to the ~~Commitments under any Revolving Tranche (which~~ Borrowers) shall be exist on ~~the same terms as~~such Increased Amount Date before or after giving effect to such New Loan Commitments, ~~and become part of, the Revolving Tranche proposed to be increased) (each, a “Revolving Credit Commitment Increase”)~~as applicable, (ii) ~~an increase in any Term~~ the New Loan ~~Tranche then outstanding (~~Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers and Administrative Agent, and each of which shall be on recorded in the ~~same terms as~~Register and shall be subject to the requirements set forth in Section 5.4(e), 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~~ 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 ~~one~~ the Borrowers and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or ~~more new revolving credit facilities~~ (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Revolving Credit Loans for all purposes of this Agreement. Notwithstanding anything else to the ~~Facilities~~contrary in this Section 2.14 or otherwise in this Agreement, in any Incremental Loans may be incurred by any Borrower(s) and/or any other Credit Party at the option of the Borrowers. (b) Incremental Revolving Credit Commitments shall be subject to the satisfaction of the following terms and conditions, (a) with respect to New Revolving Credit Commitments, each ~~case, in~~ of the Lenders with Revolving Credit Commitments of such ~~currency or currencies as the Borrower identifies in such notice~~ Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving ~~Facility”~~ Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, ~~any advance~~ each Loan made by under a ~~Lender thereunder,~~ New Revolving Credit Commitment (a “New Revolving Credit Loan”; ) and ~~the commitments thereof~~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 ~~Commitment~~Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (ivnot to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the ~~addition~~ extent such consent, if any, would be required under Section 13.6(b) for an assignment of ~~one~~ Revolving Loans or ~~more new term loan facilities~~Revolving Credit Commitments, in as applicable, to such Lender or Incremental Revolving Loan Lender. (c) New Term Loan Commitments of any Series shall be subject to the satisfaction of the following terms and conditions, (i) each ~~case, in such currency or currencies as the Borrower identifies in such notice~~ Lender with a New Term Loan Commitment (each, a “New Term ~~Facility~~Loan Lender”~~; and~~ ) of any ~~advance made by~~ Series shall make a ~~Lender thereunder,~~ Loan to the Borrowers (a “New Term Loan~~”; and~~ ” and, together with the ~~commitments thereof~~Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term ~~Commitment~~Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrowers; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Tranche B-5-6 Term Loan Maturity Date; (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the remaining weighted average life to maturity of the then existing Tranche B-5-6 Term Loans (provided that the foregoing clauses (i) and (ii) shall not apply to (A) up to the greater of (x) $1,100,000,000 and (y) 100% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) in IncrementalNew Term FacilitiesLoans as selected by the Borrowers, (B) customary bridge loans (including 364-day bridge loans); provided, that either (x) the terms of such bridge loans provide for automatic extension of the maturity date thereof to a date that is not earlier than the Tranche B-5-6 Term Loan Maturity Date or (y) any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of clauses (i) and (ii), (C) customary term A loans and (D) Indebtedness issued subject to customary escrow arrangements that have redemption requirements related to such escrow release (so long as subject to such escrow)), (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrowers and the Lenders thereunder; provided, that except with respect to (A) up to the greater of (x) $1,100,000,000 and (y) 100% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) of New Term Loans (as selected by the Borrowers), (B) customary term A loans, (C) customary bridge loans (including 364-day bridge loans) (provided that any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (iii)) and (D) New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment, with respect to any such non-excepted New Term Loans in the form of a broadly syndicated U.S. dollar denominated term “B” loan that is secured on a pari passu basis with the Tranche B-5 Term Loans incurred pursuant to clause (i)(a) of the definition of “Maximum Incremental Facilities Amount” that matures earlier than one year after the Tranche B-5 Term Loan Maturity Date, only during the period commencing on the Amendment No. 6 Effective Date and ending on the date that is 12 months after the Amendment No. 6 Effective Date, if the Applicable Margin for SOFR Loans in respect of such New Term Loans exceeds the Applicable Margin for SOFR Loans in respect of the then existing Tranche B-5 Term Loans by more than 0.75%, the Applicable Margin for SOFR Loans in respect of the then existing Tranche B-5 Term Loans shall be adjusted so that the Applicable Margin in respect of the then existing Tranche B-5 Term Loans that are SOFR Loans is equal to the Applicable Margin for SOFR Loans in respect of such New Term Loans minus 0.75% (the “Tranche B-5 MFN Protection”), (iv) to the extent such terms and documentation are not consistent with the then existing Tranche B-5 Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall either (x) reflect market terms and conditions (as determined by the Borrowers in good faith) at the time of incurrence or issuance of New Term Loans (or the obtaining of a commitment with respect thereto) or (y) be reasonably satisfactory to the Administrative Agent (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the then-Latest Term Loan Maturity Date), (v) any New Term Loans may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 5.1 and (B) on a pro rata or less than pro rata basis (but not on a greater than pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such New Term Loans) in any mandatory prepayment of Term Loans required pursuant to Section 5.2, (vi) New Term Loans may not be guaranteed by any Person which is not a Credit Party and (vii) if secured, any New Term Loans may not be secured by assets that do not constitute Collateral. For the avoidance of doubt, all parties to this Agreement hereby agree that the proviso to clause (iii) of this paragraph (d) does not apply with respect to any Tranche B-2 Term Loans and/or Tranche B-4 Term Loans (all of which such “MFN” protections have expired prior to the Amendment No. 6 Effective Date) and/or any Tranche B-6 Term Loans (all of which such “MFN” protection (if any) has expired and/or not been set and/or not been renewed). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank equal in right of payment and ~~together~~ of security with the Revolving Credit ~~Commitment Increase, the New Revolving Commitments~~ Loans and the Term ~~Commitment Increase~~Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments, (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to the provisions of Section 2.1(e) and Section 3.12 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that the Borrowers shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (viii) the pricing, fees, maturity and other immaterial terms of the Additional Revolving Credit Loans may be different and shall be determined by the Borrowers and the Lenders thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the ~~“New Loan Commitments”;) in an amount not~~ maturity date or the remaining weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans. (ix) to ~~exceed~~ the ~~sum of:~~extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness. (f) Each Joinder Agreement may, without the consent of any other

Appears in 1 contract

Sources: Credit Agreement (GoDaddy Inc.)

Appears in 1 contract

Sources: Incremental Agreement to Credit Agreement (Snap One Holdings Corp.)

Incremental Facilities. (a) The Parent Borrower may, ~~from time to time after the Closing Date, upon~~ by written notice ~~by the Borrower~~ to the Administrative Agent at any time, on one or more occasions, request to (i) 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 facilities and/or increase the ~~Person appointed by the Borrower to arrange an~~ principal amount of any such tranche of incremental ~~Facility~~ revolving facilities (each, an “Incremental ~~Credit~~ Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans CREDIT AGREEMENT, Page 88 thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) ~~(such Person (who may be~~ in an aggregate amount not to exceed the Incremental Amount. Such notice shall set forth (i) the ~~Administrative Agent, if it so agrees, or (ii) any other Person appointed by~~ amount of the ~~Borrower after consultation with the Administrative Agent), the “~~Incremental ~~Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the~~ Term Loans and/or Incremental Revolving Commitments ~~under any Revolving Tranche~~ being requested (which shall be ~~on the same terms as~~(x) with respect to Incremental Term Loans denominated in dollars, in minimum increments of $15,000,000, and with respect to Incremental Term Loans denominated in an Alternative Currency, in minimum increments of the Dollar Equivalent of $7,500,000, (y) with respect to Incremental Revolving Commitments denominated in dollars, in minimum increments of $10,000,000, and with respect to Incremental Revolving Commitments denominated in an Alternative Currency, in minimum increments of the Dollar Equivalent of $5,000,000 or (z) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. (b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender. (c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part ofof any Incremental Facility or Incremental Loan. (d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender and/or Additional Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be made thereunder; provided that, (i) subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (i)), the ~~Revolving Tranche proposed to be increased~~final maturity date of any Incremental Term Loan (x) ~~(each,~~ that is a “~~Revolving Credit Commitment Increase”)~~term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) ~~an increase~~ subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (ii)), the weighted average life to maturity of any Incremental Term Loan ~~Tranche then outstanding~~ (~~which~~ x) that is a “term loan A” shall be no shorter than the remaining weighted average life to maturity of the then-existing Term A Loans (it being agreed, for the avoidance of doubt, that when calculating the weighted average life to maturity of any Indebtedness being amended, restated, amended and restated, supplemented, extended, renewed, replaced, refinanced or otherwise modified, the effects of any amortization or prepayments made on such Indebtedness vis-ά-vis the ~~same terms as~~amortization schedule prior to the date of the applicable amended, restatement, amendment and restatement, supplement, extension, renewal, replacement, refinancing or other modification shall be disregarded), and ~~become part of~~(y) that is a “term loan B” shall be no shorter than the remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan (it CREDIT AGREEMENT, Page 89 being agreed, for the avoidance of doubt, that when calculating the weighted average life to maturity of any Indebtedness being amended, restated, amended and restated, supplemented, extended, renewed, replaced, refinanced or otherwise modified, the ~~Term Loan Tranche proposed~~ effects of any amortization or prepayments made on such Indebtedness vis-ά-vis the amortization schedule prior to the date of the applicable amended, restatement, amendment and restatement, supplement, extension, renewal, replacement, refinancing or other modification shall be ~~increased hereunder (except as otherwise provided in clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”~~disregarded), (iii) ~~the addition~~ such Incremental Facilities may be pari passu or subordinated in right of ~~one or more new revolving credit facilities~~ payment with respect to the ~~Facilities~~Loans outstanding (or made on) the Vion Acquisition ClosingFifth Amendment Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a customary intercreditor agreement with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured, (iv) any prepayment (other than scheduled amortization payments and voluntary prepayments) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Term Loans that require ratable prepayment shall be made on a pro rata basis with such then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), subject to the right of the Borrowers to direct the application of voluntary prepayments and except that the Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in ~~each case~~their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (v)), the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to Revolving Commitments, (vi) if the Effective Yield in respect of any Incremental Term Loans that are “term B loans” that rank pari passu in right of payment and with respect to security with any Term B Loans outstanding on the FourthFifth Amendment Date exceeds the Effective Yield for such Term B Loans by more than 0.50%, then the Applicable Rate for such relevant Term B Loans shall be increased to the extent necessary so that the Effective Yield for such Term B Loans is equal to the Effective Yield for such Incremental Term Loans that are “term B loans” minus 0.50% and (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three revolving facilities (including any revolving facility constituting Specified Refinancing Debt), shall be outstanding hereunder at any one time and (y) the Administrative Agent may, in its reasonable discretion, take such ~~currency~~ actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities. All terms with respect to any Incremental Facility which are materially more restrictive (taken as a whole) than those with respect to the Loans under the existing applicable Class of Credit Facility shall be (x) permitted by clauses (i) through (vii) of the preceding sentence, (y) applicable only after the Latest Maturity Date of the relevant Credit Facility outstanding on the FourthFifth Amendment Date (which may be achieved by an amendment solely among the Parent Borrower and the Administrative Agent (and the Required Lenders hereby authorize the Administrative Agent to enter into such amendment)), or ~~currencies~~ (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 ~~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~~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 “~~New Revolving Commitment”~~the occasion of any Borrowing” in Section 4.04 shall be deemed to refer to the Increased Amount Date) and (ivB) the ~~addition of one or more new term loan facilities,~~ Parent Borrower is in ~~each case, 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 ~~currency or currencies as the Borrower identifies in such notice (each, a “New Term Facility”;~~ date and ~~any advance made~~ executed by a ~~Lender thereunder~~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 ~~“New Term Loan”; and the commitments thereof~~Limited Condition Acquisition, 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 any such conditions will be subject to ~~exceed the sum of:~~Section 1.10(c) hereof.

Appears in 1 contract

Sources: Credit Agreement (Darling Ingredients Inc.)

Incremental Facilities. (a) ~~The~~ Parent Borrower ~~may~~shall have the right, ~~from time to time~~ but not the obligation, after the Closing Date, upon notice to the Administrative Agent (an “Incremental Borrowing Notice”), to incur one or more additional term loan facilities (each, an “Incremental Term Loan Facility,” and together with the Initial Term Loan Facility, the “Term Loan Facilities” the loans under each Incremental Term Loan Facility, “Incremental Term Loans”) or revolving facilities (each, an “Incremental Revolving Facility,” the loans under each Incremental Revolving Facility, “Incremental Revolving Loans”), or one or more increases in the aggregate commitments under the Initial Revolving Facility (which may, with respect to any Incremental Revolving Facility or any increase to the Initial Revolving Facility, at the election of Parent Borrower and with the consent of the LC Issuer, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed), the Swing Line Commitment) (each, an “Incremental Initial Revolving Facility,” the loans thereunder, the “Incremental Initial Revolving Loans”) (and each of the foregoing, an “Incremental Facility” and collectively, the “Incremental Facilities”), in each case sharing in the Collateral (as defined below) on a pari passu or junior basis, in an aggregate amount of up to (w) $65.0 million minus the aggregate amount of Indebtedness incurred in reliance on clause (a)(x) of the definition of “Permitted Incremental Indebtedness”, so long as on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Facility, the Total Leverage Ratio is less than the Total Leverage Ratio covenant level then in effect under Section 7.06 minus 0.25 (even if Holdings would not otherwise exceed the Table of Contents Maintenance Covenant Level) plus (x) additional amounts so long as after giving effect to the incurrence of the Loans in respect of such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments (assuming the full amount thereof is drawn) and/or Permitted Incremental Indebtedness incurred under Section 7.03(w) and after giving effect to any Acquisition that may be consummated in connection therewith, the Total Leverage Ratio (calculated on a Pro Forma Basis and provided that (A) all Permitted Incremental Indebtedness incurred under Section 7.03(w) shall also be included in such calculation for this purpose, whether or not it would otherwise be included and (B) the proceeds of the Incremental Facility being incurred shall not be netted against indebtedness for purposes of the calculation relating to such incurrence) shall not be greater than 2.75 to 1.00; provided that (a) no commitment of any Lender may be increased without the consent of such Lender, (b) no Event of Default exists after giving effect thereto (provided, however, that if the proceeds of such Incremental Facilities are used to finance a Permitted Acquisition, Permitted Change of Control or other Investment permitted by this Agreement (and costs reasonably related thereto), it shall only be required that no Specified Event of Default shall be continuing at the time of incurrence), (c) any Incremental Facility that is an increase in the aggregate amount of the Initial Revolving Commitment shall be on the same terms and pursuant to the same documentation as the Initial Revolving Commitment, (d) the yield applicable to any Incremental Initial Revolving Facility shall be equal to the corresponding yield on the Initial Revolving Facility (calculated for such Incremental Initial Revolving Facility and Initial Revolving Facility inclusive of any original issue discount and/or upfront fee percentage paid to all Lenders, but exclusive of any arrangement, underwriting or similar fees); provided, that Parent Borrower may increase the pricing of the Initial Revolving Facility, without the consent of the Administrative Agent or any Lender, such that the foregoing is true, including increasing the Applicable Margin, the Commitment Fee, adding or increasing an existing “LIBOR Floor” (if applicable), and paying additional original issue discount and/or upfront fees, (e) in the case of any Incremental Revolving Facility, (i) such Incremental Revolving Facility shall have a final maturity no earlier than the Initial Revolving Facility Termination Date and (ii) such Incremental Revolving Facility shall provide that (A) the borrowing and repayment (except for (1) payments of interest and fees at different rates on the Incremental Revolving Credit Facility (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Facility and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (C) below)) of Loans with respect to Incremental Revolving Credit Commitments after the effectiveness of such Incremental Revolving Facility shall be made on a pro rata basis with all other Revolving Credit Commitments on the date of effectiveness of such Incremental Revolving Facility, (B) subject to the provisions of Sections 2.04(e) and 2.05(h) to the extent dealing with Swing Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Facilities with a longer maturity date, all Swing Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments on the effective date of such Incremental Revolving Facility (and except as provided in Section 2.04(e) and Section 2.05(h), without giving effect to changes thereto on an earlier maturity date with respect to Swing Loans and Letters of Credit theretofore incurred or issued), (C) Incremental Revolving Facilities may include provisions relating to swing line loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swing line lender and letter of credit issuer, as applicable, which shall be determined by the ~~Borrower~~ Parent Borrower, the lenders of such commitments and the applicable letter of credit issuers and swing line lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Revolving Credit Assumption Agreement) to the terms relating to Swing Loans and Letters of Credit with respect to Table of Contents the Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and ~~the Person appointed~~ (D) assignments and participations of Incremental Revolving Commitments and Loans shall be governed by the same assignment and participation provision, (f) the yield applicable to any Incremental Term Loan Facility or Incremental Revolving Facility, shall not be more than 0.50% higher than the yield on the corresponding Initial Facility (calculated for both such Incremental Facility and the corresponding Initial Facility inclusive of any “LIBOR Floor” (if, applicable), original issue discount and/or upfront fees paid to all Lenders under such Initial Facility, but exclusive of any arrangement, underwriting or similar fee paid), unless the yield with respect to the applicable Initial Facility is increased by an amount equal to or greater than the difference between the yield with respect to the Incremental Facility and the corresponding yield on such Initial Facility minus 0.50% (for purposes of determining the difference in “yield” as to such Incremental Facility and the corresponding Initial Facility, yield shall be calculated by adding the difference with respect to such Incremental Facility and such corresponding Initial Facility of each of the following: (i) Applicable Revolving Loan Margin or Applicable Term Loan Margin, as applicable, (ii) “LIBOR floor”, which shall be equated to yield by taking the difference of (A) the “LIBOR floor” of such facility and (B) the 3-month Adjusted Eurodollar Rate as of a date ten (10) Business Days prior to the closing of such Incremental Facility and (iii) original issue discount and/or upfront fees, which shall be equated to yield by dividing such original issue discount and/or upfront fee percentage (as of the date such facility was funded, in each case), by four (4) (provided, that for purposes of calculating the yield related to the original issue discount and/or upfront fee percentage of the Incremental Facilities, if the Weighted Average Life to Maturity of the Incremental Facility is shorter than 4 years, the actual Weighted Average Life to Maturity), (g) the maturity of any Incremental Term Loan Facility shall not be earlier than the Latest Maturity Date of the Initial Term Loans, (h) the Weighted Average Life to Maturity of any Incremental Term Loan Facility shall not be shorter than that of the Initial Term Loan Facility, (i) the Incremental Term Loan Facility shall provide that such facility shall be prepaid with the proceeds of mandatory prepayment events on a pro rata basis (but not greater than pro rata basis) with other then outstanding Initial Term Loans, (j) the covenants, events of default and guarantees of such Incremental Term Loan Facility or Incremental Revolving Facility, if not consistent with the terms of the corresponding Initial Facility (A) shall be as mutually agreed upon between Parent Borrower and lenders providing such Incremental Facility and (B) shall not be more restrictive to ~~arrange~~ Parent Borrower, when taken as a whole, than the terms of the corresponding Initial Facility unless (1) Lenders under the corresponding Initial Facility also receive the benefit of such more restrictive terms (without any consent being required) or (2) any such provisions apply after the Latest Maturity Date of the corresponding Initial Facility and (k) (x) Incremental Term Loan Facilities shall be requested in minimum amounts of $2,500,000 or a higher multiple of $1,000,000 and (y) Incremental Revolving Facilities shall be requested in minimum amounts of $1,000,000 or a higher multiple of $1,000,000. The proceeds of each Incremental Facility may be used to finance working capital needs, for general corporate purposes and to finance any transactions permitted by this Agreement . The commitments in respect of any Incremental Facilities may be denominated in U.S. Dollars and/or other currencies as agreed among Parent Borrower, the Administrative Agent and the lenders providing such Incremental Facilities. Each Incremental Borrowing Notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Credit Commitments being requested, (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than five (5) Business Days nor more than sixty (60) days after the date of Incremental Borrowing Notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments, if any, are to be Termss Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). Table of Contents (b) Any Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The applicable Borrower, each Incremental Term Lender and the Administrative Agent shall execute and deliver an ~~incremental~~ Incremental Term Loan Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. The Incremental Term Loan Assumption Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents that are consistent with and as may be necessary, in the reasonable opinion of the Administrative Agent and the Parent Borrower, to effect the provisions of this Section 2.18. The Borrowers, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent would be required under Section 11.12(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. Each Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Term Loans, Incremental Revolving Loans or Incremental Initial Revolving Loans, as applicable, to be made thereunder, consistent with the provisions set forth in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, or otherwise to effect the provisions of this Section 2.18, notwithstanding any requirements of Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrowers and furnished to the other parties hereto. (c) Upon each increase in the Revolving Commitments under the Initial Revolving Facility pursuant to this Section 2.18, each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Initial Revolving Facility (each, an “Incremental ~~Credit Facility~~Initial Revolving Facility Lender”) in respect of such increase, and each such Incremental Initial Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment of such ~~Person~~ Class (~~who may~~ including each such Incremental Initial Revolving Facility Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Initial Revolving Facility be prepaid from the proceeds of additional Revolving Loans made hereunder (~~i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent~~reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the ~~“Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof~~ Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the ~~proposed currency denomination thereof~~Lenders hereby agree that the minimum borrowing, ~~request (i) an increase~~ pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the ~~Commitments under any Revolving Tranche (which shall be on~~ transactions effected pursuant to 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 immediately preceding sentence. Table of Contents (d) ~~below~~ Upon each provision of an Incremental Revolving Facility, each Lender with ~~respect to amortization)) (each,~~ a ~~“Term~~ Revolving Commitment ~~Increase”), (iii) the addition of one or more new revolving credit facilities~~ immediately prior to the ~~Facilities~~providing of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, in and each ~~case, in~~ such ~~currency or currencies as the Borrower identifies in such notice (each, a “New Revolving Facility” and, any advance made by a~~ Lender ~~thereunder, a “New Revolving Loan”;~~ will automatically 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 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:with

Appears in 1 contract

Sources: Credit Agreement (JGWPT Holdings Inc.)

Incremental Facilities. (a) The Borrower ~~may, from time to time after the Closing Date, upon~~ may by written notice ~~by the Borrower~~ to the Administrative Agent elect to request the establishment of one or more (x) additional term loans, which may be of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term Loan Commitments”), (y) additional commitments consisting of one or more letter of credit facilities (such commitments, collectively, the “Incremental Letter of Credit Commitments”) and/or (yz) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loan Commitments, the “ and the ~~Person appointed~~ Incremental Letter of Credit Commitments, the “Incremental Loan Commitments”), by an aggregate amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.1(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the ~~Borrower to arrange an incremental Facility~~ Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “~~Incremental Credit Facility~~Increased Amount Date”) ~~(such~~ on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (~~who~~ other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments may be elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) unless the ~~Administrative Agent~~immediately succeeding clause (y) is applicable, ~~if it so agrees,~~ no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (iiy) ~~any~~ if such Incremental Loan Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other ~~Person appointed~~ provisions of Section 11 as may otherwise be required by the ~~Borrower~~ Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after ~~consultation with the Administrative Agent), the “~~giving effect to such Incremental ~~Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof~~ Loan Commitment and the ~~proposed currency denomination thereof, request (i) an increase in the Commitments under~~ borrowing of 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”)~~Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Loan Commitments, on an ~~increase in any Term Loan Tranche then outstanding (which~~ Increased Amount Date, there shall be on no requirement for the ~~same terms as,~~ Borrower to bring down the representations and ~~become part of,~~ warranties under 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”)~~Credit Documents, (iii) the ~~addition of~~ Incremental Loan Commitments shall be effected pursuant to one or more ~~new revolving credit facilities~~ Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the ~~Facilities,~~ requirements set forth in ~~each case, in such currency or currencies as~~ Section 5.4(d) and (e) and (iv) the Borrower ~~identifies~~ shall make any payments required pursuant to Section 2.11 in connection with the Incremental Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such ~~notice~~ increase and (b) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans or Revolving Credit Commitments, each, a “Series”). (b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to New Revolving Credit Commitments, each of the Revolving Credit Lenders with an existing Revolving Credit Commitment of the Class being increased by such New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each Revolving Credit Lender with a New Revolving Credit Commitment of such Class (each, a “New Revolving ~~Facility” and~~Loan Lender”), ~~any advance made by a Lender thereunder, a “~~and each of such New Revolving ~~Loan”;~~ Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such Revolving Credit Lender’s participations hereunder in outstanding Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the ~~commitments~~ percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Credit Lender holding Revolving Credit Loans (including each such New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit Commitments of all Revolving Credit Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the “Revolving Credit Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders under such Class and New Revolving ~~Commitment”) and (iv)~~ Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the addition of ~~one or more new term~~ such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan ~~facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ made under a New Revolving Credit Commitment (each, a “New ~~Term Facility”; and any advance made by a Lender thereunder, a “New Term~~ Revolving Credit Loan”; ) and ~~the commitments thereof~~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 on which any Incremental Term ~~Commitment~~Loan Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and conditions, (i) each Lender with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) of any Series shall make a term loan to the Borrower (an “Incremental Term Loan” and, together with the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term Loan Commitment of such Series, and (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans. (d) The terms and provisions of any Incremental Term Loan Commitments and the respective related Incremental Term Loans, in each case effected pursuant to a Term Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans subject to such increase; provided, that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and ~~together~~ other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term Loan Commitments and the respective related Incremental Term Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term Loan Commitments may be paid in connection with such Incremental Term Loan Commitments. Any Incremental Term Loans incurred as a Term Loan Increase shall be fungible for the U.S. federal income tax purposes with the existing Class of Term Loans proposed to be increased thereby. The terms and provisions of any Incremental Term Loan Commitments and the respective related Incremental Term Loans of any Series not effected pursuant to a Term Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that: (i) [reserved]; (ii) [reserved]; (iii) the Incremental Term Loans and Incremental Term Loan Commitments, (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans are unsecured or rank junior in right of payment or as to security with the Obligations, such Incremental Term Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured, secured solely by assets that do not constitute Collateral or rank pari passu or junior in right of security with the Obligations 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 Agreement, the Junior Lien Intercreditor Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable) or (II) be secured solely by assets that do not constitute Collateral; (iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental Term Loans 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 in the form of “term b loans”made under Incremental Term Loan Commitments, if the Yield in respect of any Incremental Term Loans that rank pari passu in right of payment and security with the Initial Term Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable SOFR Margin, as applicable, in respect of such Initial Term Loans shall be adjusted so that the Yield in respect of such Initial Term Loans is equal to the Yield in respect of such Incremental Term Loans minus 0.50%; provided, further, to the extent any change in the Yield of the Initial Term Loans is necessitated by this clause (iv) on the basis of an effective interest rate floor in respect of the Incremental Term Loans the increased Yield in the Initial Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Yield effected solely by increases in the interest rate floor(s) applicable to the Initial Term Loans (this clause (iv), the “MFN Adjustment”); provided, further, that the MFN Adjustment shall not apply to Incremental Term Loans (a) that mature on or after the twelve month anniversary of the Term Loan Maturity Date, (b) that are incurred after the twelve month anniversary of the Closing Date, (c) that are incurred in reliance on the Incremental Fixed Dollar Basket or, (d) the proceeds of which are used to consummate a Permitted Acquisition, (e) that are incurred in reliance on the Incremental Prepayment Basket and (f) that do not exceed an aggregate principal amount of the greatest of (x) $70,000,000, (y) 50% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence and (z) 4% of Consolidated Total Assets as of the last day of the most recently ended Test Period (calculated on a Pro Forma Basis) (clauses (a) through (df) of this proviso, collectively, the “MFN Exceptions”); and (v) all other terms of any Incremental Term Loans (other than as described in clauses (i), (ii), (iii) and (iv) above) may differ from the terms of the Initial Term Loans if reasonably satisfactory to the Borrower and the lender(s) providing such Incremental Term Loans. (e) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be substantially identical to the Class of Commitments and related Revolving Credit Loans subject to increase by such New Revolving Credit Commitments and New Revolving Credit Loans; provided, that underwriting, arrangement, structuring, ticking, commitment, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such New Revolving Credit Commitments and related New Revolving Credit Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such New Revolving Credit Commitments may be paid in connection with such New Revolving Credit Commitments. Additional Revolving Credit Commitments and Additional Revolving Credit Loans shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided, further, that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Additional Revolving Credit Commitments and Additional Revolving Credit Loans shall rank pari passu or junior in right of payment and of security with the Revolving Credit ~~Commitment Increase~~Loans (and, if applicable, shall be subject to a subordination agreement and/or the Junior Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent); and (ii) any such Additional Revolving Credit Commitments and Additional Revolving Credit Loans (x) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (y) if secured, shall 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 Agreement, the ~~New Revolving Commitments~~ Junior Lien Intercreditor Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the ~~Term Commitment Increase~~Administrative Agent, ~~the “New Loan Commitments”;) in an amount~~ as applicable) or (II) be secured solely by assets that do not ~~to exceed the sum of:~~constitut

Appears in 1 contract

Incremental Facilities. (a) The ~~Borrower~~ Borrowers or any Guarantor or, solely in the case of a New Term Loan Facility denominated in an Alternative Currency, any Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent (any such Guarantor or Restricted Subsidiary for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, ~~from time~~ by written notice to ~~time after~~ the ~~Closing Date~~Administrative Agent, ~~upon notice~~ request the establishment of one or more new tranches of term facilities denominated in Dollars, an Alternative Currency or any other currency agreed to by the ~~Borrower to~~ applicable Borrower, the Administrative Agent and the ~~Person appointed by the Borrower to arrange an incremental~~ Lenders providing such New Term Loan Facility (each, an “Incremental Credit Facility”) (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the 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~~ New Term Loan ~~Tranche then outstanding (which shall be on~~ Facility”) and/or increase the ~~same terms as, and become part of,~~ principal amount of the Term ~~Loan Tranche proposed~~ Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be ~~increased hereunder~~ added to such Loans (~~except as otherwise provided in clause (d~~together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) ~~below with respect to amortization)) (each, a “Term Commitment Increase”), (iii)~~ and/or request the ~~addition~~ establishment of one or more new ~~revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any ~~advance made~~ Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Borrower have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum of (x) the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) and (ii) 100% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding, less any amount of Indebtedness incurred pursuant to clause (x)(i) of Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, (i) in case of Incremental Facilities that are secured on a pari passu basis with the Obligations, the First Lien Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (ii) in case of Incremental Facilities that are secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (iii) in case of Incremental Facilities that are unsecured, the Fixed Charge Coverage Ratio is less than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Credit Facilities are fully drawn) and, in each instance, for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that Incremental Facilities (1) shall be incurred pursuant to clause (y) above prior to utilization of any capacity pursuant to clause (x) above, (2) amounts incurred in reliance on clause (x) above concurrently with amounts incurred in reliance on clause (y) above shall not be included as Indebtedness in the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, for purposes of calculating any amounts that may be incurred pursuant to clause (y) above on the same day and (3) if all or any portion of any Incremental Facility was originally incurred or issued in reliance on clause (x) above and thereafter such amount could have been incurred pursuant to clause (y) above, such amount of such Incremental Facility shall be reclassified, as the applicable Borrower may elect from time to time, as having been incurred pursuant to clause (y) above and thereafter shall not count as utilization of clause (x) above; provided, further, that, notwithstanding the foregoing or anything to the contrary set forth herein, (1) Incremental Term Loans may be incurred without regard to any of the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on or about the date of incurrence to permanently prepay and refinance Term Loans of any Tranche selected by the applicable Borrower on a dollar-for-dollar basis, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso, and (2) New Revolving Credit Facilities may be incurred without regard to the foregoing limits to the extent that such New Revolving Credit Facilities are used on or about the date of incurrence to refinance and permanently reduce Revolving Credit Commitments of any Tranche selected by Borrower on a dollar-for-dollar basis, and any such Revolving Credit Commitments thereunder (the “Refinancing Incremental Revolving Credit Commitments”) shall be deemed to have been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the applicable Incremental Facility shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender ~~thereunder~~or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) and by the L/C Issuer to the extent such consent, if any, would be required under Section 11.06 for an assignment of Loans or Revolving Credit Commitments (any such Affiliate or other Person, a “New ~~Revolving Loan~~Incremental Lender”; ) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the ~~commitments thereof, the “New Revolving Commitment”)~~ amounts of such allocations and (iviii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Credit Facility. Such Incremental Facility shall become effective as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Facility (except that, with respect to this clause (A), solely to the ~~addition~~ extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist), (B) both before and after giving effect to such Incremental Facility, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid (except, solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, (x) with respect to Section 5.02(a), such Incremental Facility shall only be subject to customary “funds certain provisions” and (y) with respect to Section 5.02(b), such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist); (C) any Incremental Facility provided by any New Incremental Lender shall be effected pursuant to one or more ~~new term loan facilities~~joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by a Borrower (or Additional Borrower, if applicable) and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. (b) The creation or provision of any Incremental Facility or Incremental Loan (and, in connection therewith, any amendment to the terms of this Agreement that is necessary or appropriate to implement the provisions thereof or that is favorable to the then-existing Lenders, in each case, as reasonably determined by the Administrative Agent in its sole discretion) shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment. (c) The terms and provisions of any New Revolving Credit Facility (other than pricing, maturity and fees) shall be, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the existing Revolving Credit Facility; provided that, (i) no New Revolving Credit Facility shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date of any Tranche of Revolving Credit Loans (or, in the case of Refinancing Incremental Revolving Credit Commitments, the final maturity date of the Tranche of Revolving Credit Commitments that are being refinanced), (ii) any guarantor of any New Revolving Credit Facility shall also be a Guarantor; provided, that, in the event any New Revolving Credit Facility is incurred by a Foreign Subsidiary of ESI, such ~~currency~~ New Revolving Credit Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (iii) if secured, such New Revolving Credit Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is materially more restrictive, when taken as a whole, to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or ~~currencies~~ may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent and (iv) each New Revolving Credit Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent). (d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Tranche B-1 Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the Tranche B-1 Term Loans, as applicable; provided that, except as otherwise set forth herein or in the joinder agreement set forth in clause (a), then (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity such refinanced Tranche of the Term Loans, (or, in the case of any New Term Loans that are Refinancing Incremental Term Loans, the weighted average life to maturity of the Tranche of Term Loans that are being refinanced), (ii) the final maturity date with respect to any New Term Loans shall be no earlier than the maturity date of such refinanced Tranche (or, in the case of any New Term Loans that are refinancing Incremental Term Loans, the final maturity date of the Tranche of Term Loans that are being refinanced), (iii) if the Yield on any New Term Loans incurred no later than 12 months after the Closing Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the ~~Borrower identifies~~ “Yield Differential”) the Applicable Rate then in ~~such notice (each~~effect for any Term Loans, ~~a “~~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 ~~Facility”;~~ Loans (and ~~any advance made by a Lender thereunder, a “~~if the margins on the New Term ~~Loan”; and~~ Loans are subject to a leveraged-based pricing grid, appropriate increases to the ~~commitments thereof~~Applicable Rates for the Term Loans, consistent with the foregoing, shall be made) (this clause (iii), the “MFN Adjustment”), (iv) any guarantor of any New Term ~~Commitment”~~Loan Facility shall also be a Guarantor; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (v) if secured, such New Term Loan Facility shall not be secured by any assets that do not constitute Collateral and ~~together~~ may not be secured pursuant to security documentation that is more restrictive to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (vi) each New Term Loan Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (vii) any New Term Loan Facility may be denominated in Euros or Pounds Sterling so long as (A) the borrower thereunder is a Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent and (B) such New Term Loan Facility is subject to guarantee, collateral and collateral allocation arrangements that are reasonably satisfactory to ESI and the Administrative Agent. Each joinder agreement referred to in Section 2.14(a) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, as reasonably determined by the Administrative Agent in its sole discretion, to effect the provision of this Section 2.14. (e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Tranche B-1 Term Loans or Initial Revolving Credit ~~Commitment Increase~~Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B-1 Term Loans or Initial Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Eurocurrency Rate Loan to be converted into a Base Rate Loan on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Eurocurrency Rate Loans on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Eurocurrency Rate Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans is to be allocated to an existing Interest Period for a Eurocurrency Rate Loan then, subject to Section 2.08(b), the ~~New Revolving Commitments and~~ interest rate applicable to such Incremental Loan for the ~~Term Commitment Increase,~~ remainder of such Interest Period shall equal the ~~“New Loan Commitments”;) in an amount not to exceed the sum of:~~Adjusted Euro

Appears in 1 contract

Incremental Facilities. (a) The Borrower ~~may, from time to time after the Closing Date, upon~~ may by written notice ~~by the Borrower~~ to the Administrative Agent elect to request the establishment of one or more (x) additional term loans, which may be of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term Loan Commitments”) and/or (y) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), by an aggregate amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the ~~Person appointed~~ extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.1(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the ~~Borrower to arrange an incremental Facility~~ Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “~~Incremental Credit Facility~~Increased Amount Date”) ~~(such~~ on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (~~who~~ other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments may be elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) unless the ~~Administrative Agent~~immediately succeeding clause (y) is applicable, ~~if it so agrees,~~ no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (iiy) ~~any~~ if such Incremental Loan Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other ~~Person appointed~~ provisions of Section 11 as may otherwise be required by the ~~Borrower~~ Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after ~~consultation with the Administrative Agent), the “~~giving effect to such Incremental ~~Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof~~ Loan Commitment and the ~~proposed currency denomination thereof, request (i) an increase in the Commitments under~~ borrowing of 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”)~~Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Loan Commitments, on an ~~increase in any Term Loan Tranche then outstanding (which~~ Increased Amount Date, there shall be on no requirement for the ~~same terms as,~~ Borrower to bring down the representations and ~~become part of,~~ warranties under 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”)~~Credit Documents, (iii) the ~~addition of~~ Incremental Loan Commitments shall be effected pursuant to one or more ~~new revolving credit facilities~~ Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the ~~Facilities,~~ requirements set forth in ~~each case, in such currency or currencies as~~ Section 5.4(d) and (e) and (iv) the Borrower ~~identifies~~ shall make any payments required pursuant to Section 2.11 in connection with the Incremental Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such ~~notice~~ increase and (b) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans or Revolving Credit Commitments, each, a “Series”). (b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to New Revolving Credit Commitments, each of the Revolving Credit Lenders with an existing Revolving Credit Commitment of the Class being increased by such New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each Revolving Credit Lender with a New Revolving Credit Commitment of such Class (each, a “New Revolving ~~Facility” and~~Loan Lender”), ~~any advance made by a Lender thereunder, a “~~and each of such New Revolving ~~Loan”;~~ Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the ~~commitments~~ percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Credit Lender holding Revolving Credit Loans (including each such New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit Commitments of all Revolving Credit Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the “Revolving Credit Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders under such Class and New Revolving ~~Commitment”) and (iv)~~ Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the addition of ~~one or more new term~~ such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan ~~facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ made under a New Revolving Credit Commitment (each, a “New ~~Term Facility”; and any advance made by a Lender thereunder, a “New Term~~ Revolving Credit Loan”; ) and ~~the commitments thereof~~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 on which any Incremental Term ~~Commitment~~Loan Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and conditions, (i) each Lender with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) of any Series shall make a term loan to the Borrower (an “Incremental Term Loan” and, together with the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term Loan Commitment of such Series, and (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans. (d) The terms and provisions of any Incremental Term Loan Commitments and the respective related Incremental Term Loans, in each case effected pursuant to a Term Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans subject to such increase; provided, that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and ~~together~~ other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term Loan Commitments and the respective related Incremental Term Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term Loan Commitments may be paid in connection with such Incremental Term Loan Commitments. Any Incremental Term Loans incurred as a Term Loan Increase shall be fungible for the U.S. federal income tax purposes with the existing Class of Term Loans proposed to be increased thereby. The terms and provisions of any Incremental Term Loan Commitments and the respective related Incremental Term Loans of any Series not effected pursuant to a Term Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that: (i) [reserved]; (ii) [reserved]; (iii) the Incremental Term Loans and Incremental Term Loan Commitments, (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans are unsecured or rank junior in right of payment or as to security with the Obligations, such Incremental Term Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with the Obligations and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable); (iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental Term Loans shall be determined by the Borrower and the lender(s) thereunder; provided, however, that, with respect to any broadly syndicated Dollar-denominated Incremental Term Loans made under Incremental Term Loan Commitments, if the Yield in respect of any Incremental Term Loans that rank pari passu in right of payment and security with the Initial Term Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable SOFR Margin, as applicable, in respect of such Initial Term Loans shall be adjusted so that the Yield in respect of such Initial Term Loans is equal to the Yield in respect of such Incremental Term Loans minus 0.50%; provided, further, to the extent any change in the Yield of the Initial Term Loans is necessitated by this clause (iv) on the basis of an effective interest rate floor in respect of the Incremental Term Loans the increased Yield in the Initial Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Yield effected solely by increases in the interest rate floor(s) applicable to the Initial Term Loans (this clause (iv), the “MFN Adjustment”); provided, further, that the MFN Adjustment shall not apply to Incremental Term Loans (a) that mature on or after the twelve month anniversary of the Term Loan Maturity Date, (b) that are incurred after the twelve month anniversary of the Closing Date, (c) that are incurred in reliance on the Incremental Fixed Dollar Basket or (d) the proceeds of which are used to consummate a Permitted Acquisition (clauses (a) through (d) of this proviso, collectively, the “MFN Exceptions”); and (v) all other terms of any Incremental Term Loans (other than as described in clauses (i), (ii), (iii) and (iv) above) may differ from the terms of the Initial Term Loans if reasonably satisfactory to the Borrower and the lender(s) providing such Incremental Term Loans. (e) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be substantially identical to the Class of Commitments and related Revolving Credit Loans subject to increase by such New Revolving Credit Commitments and New Revolving Credit Loans; provided, that underwriting, arrangement, structuring, ticking, commitment, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such New Revolving Credit Commitments and related New Revolving Credit Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such New Revolving Credit Commitments may be paid in connection with such New Revolving Credit Commitments. Additional Revolving Credit Commitments and Additional Revolving Credit Loans shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided, further, that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Additional Revolving Credit Commitments and Additional Revolving Credit Loans shall rank pari passu or junior in right of payment and of security with the Revolving Credit ~~Commitment Increase~~Loans (and, if applicable, shall be subject to a subordination agreement and/or the Junior Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent); and (ii) any such Additional Revolving Credit Commitments and Additional Revolving Credit Loans (x) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (y) if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the ~~New Revolving Commitments~~ Junior Lien Intercreditor Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable). (f) The Administrative Agent and the Lenders hereby consent to the consummation of the transactions contemplated by this Section 2.14 and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such extension or any other transaction contemplated by this Section 2.14. Each Incremental Amendment may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.14 (including increasing amortization payments to achieve fungibility of a Term ~~Commitment Increase, the “New~~ Loan ~~Commitments”;) in an amount not to exceed the sum of:~~Increase with such existing Term Loan).

Appears in 1 contract

Incremental Facilities. (a) The Parent Borrower ~~may~~may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (including on a delayed draw basis) (the commitments thereto, ~~from time to time after~~ the ~~Closing Date~~“New Term Loan Commitments”), ~~upon notice~~ (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 (or the Dollar Equivalent thereof) individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date on which the Parent Borrower proposes that the New Loan Commitments shall be effective (the effective date, the “Increased Amount Date”), the Borrowers (including by appointing a Guarantor (other than Holdings) as a “Borrower”, subject to customary “know your customer” and equivalent procedures and compliance with Section 1.13 (which shall be deemed to apply to New Term Loan Commitments, mutatis mutandis)) to which such New Loan Commitments will be available and the currency in which such New Loan Commitments will be borrowed. Subject to Section 1.11(c), in connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Parent Borrower shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the ~~Person appointed by the Borrower to arrange an incremental Facility (each, an “Incremental Credit Facility”) (such~~ calculations and basis therefor. The Borrowers may approach any Lender or any Person (~~who~~ other than a natural Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may be elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) ~~the Administrative Agent, if it so agrees, or~~ (iiA) ~~any other Person appointed by the Borrower after consultation with the Administrative Agent~~subject to Section 1.11(c), ~~the “Incremental Arranger”~~no Event of Default under Section 11.1 or Section 11.5 (solely with respect to a Borrower) ~~specifying the proposed Borrower~~ shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable and (~~which may include a Co-Borrower)~~B) after giving effect to such New Loan Commitments, the ~~proposed amount thereof and the proposed currency denomination thereof, request (i~~condition in Section 7.1(b) ~~an increase in the Commitments under any Revolving Tranche (which~~ shall be on satisfied (it being understood that all references to “the ~~same terms as~~date of such Credit Event” or similar language in such Section 7.1 shall be deemed to refer to the applicable date determined in accordance with Section 1.11(c)); provided, ~~and become part of~~further, that the ~~Revolving Tranche proposed to be increased~~lenders providing such New Loan Commitments may modify and/or waive the requirement regarding the condition in Section 7.1(b) ~~(each, a “Revolving Credit Commitment Increase”)~~for all purposes hereunder, (ii) ~~an increase in any Term~~ the New Loan ~~Tranche then outstanding (~~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 on recorded in the ~~same terms as,~~ Register and ~~become part of,~~ shall be subject to the ~~Term Loan Tranche proposed to be increased hereunder (except as otherwise provided~~ requirements set forth in ~~clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”~~Section 5.4(e), (iii) the ~~addition~~ 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 ~~one~~ 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 ~~more new revolving credit facilities~~ (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 ~~Facilities~~satisfaction of the foregoing terms and conditions, in (a) with respect to New Revolving Credit Commitments, each ~~case, in~~ of the Lenders with Revolving Credit Commitments of such ~~currency or currencies as the Borrower identifies in such notice~~ Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving ~~Facility”~~ Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, ~~any advance~~ each Loan made by under a ~~Lender thereunder,~~ New Revolving Credit Commitment (a “New Revolving Credit Loan”; ) and ~~the commitments thereof~~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 ~~Commitment~~Loan Lender and each Lender with an Additional Revolving Credit Commitment (together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and the Letter of Credit Issuer shall have consented (ivnot to be unreasonably withheld, delayed or conditioned) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the ~~addition~~ extent such consent, if any, would be required under Section 13.6(a) for an assignment of ~~one~~ Revolving Loans or ~~more new term loan facilities~~Revolving Credit Commitments, in as applicable, to such Lender or Incremental Revolving Loan Lender. (c) On or after the date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~case, in such currency or currencies as the Borrower identifies in such notice~~ Lender with a New Term Loan Commitment (each, a “New Term ~~Facility~~Loan Lender”~~; and~~ ) of any ~~advance made by~~ Series shall make a ~~Lender thereunder~~Loan to the Borrowers, as specified in the applicable Notice of Borrowing, (a “New Term Loan~~”; and~~ ” and, together with the ~~commitments thereof~~Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount up to its New Term ~~Commitment~~Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Parent Borrower; provided that (i) subject to the Inside Maturity Exceptions, the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date (as in effect at the time of such incurrence or obtaining of a commitment with respect thereto); (ii) subject to the Inside Maturity Exceptions, the weighted average life to maturity of all New Term Loans shall be no shorter than the remaining weighted average life to maturity of the then existing Initial Term Loans or the then existing Amendment No. 3 Term Loans (excluding the effects of any amortization of such New Term Loans in an amount no greater than 1.00% per annum and calculated without giving effect to prepayments of the Term Loans) (as in effect at the time of such incurrence or obtaining of a commitment with respect thereto), (iii) the mandatory prepayments of the New Term Loans shall be made on a pro rata basis (or less than pro rata basis) with all other Initial Term Loans and Amendment No. 3 Term Loans in the case of mandatory prepayments applicable to the Initial Term Loans or the Amendment No. 3 Term Loans, as applicable, (iv) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrower(s) and the Lenders thereunder; provided that in the case of broadly syndicated term loan “B” Dollar-denominated New Term Loans that are pari passu in right of payment and security with the then existing Initial Term Loans, if the Effective Yield for Term SOFR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans in respect of the then existing Initial Term Loans by more than 0.75%, the Applicable Margin for Term SOFR Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for Term SOFR Loans in respect of the New Term Loans minus 0.75% (this proviso, the “MFN Provision”) (provided, that to the extent such increase in Effective Yield is the result of a higher floor with respect to such New Term Loans, the increase in Effective Yield for the existing Initial Term Loans shall take the form of an increase in the Floor for such Initial Term Loans to the extent of the Effective Yield differential); provided, further, that the MFN Provision shall not apply to (1) New Term Loans incurred on or after the date that is 6 months after the Closing Date, (2) New Term Loans scheduled to mature on or after the date that is one year after the Initial Term Loan Maturity Date, (3) any New Term Loans originally incurred in reliance upon the Shared Incremental Amount or the Prepayment and Extension Amount, (4) any New Term Loans incurred in connection with a Permitted Acquisition or other permitted Investment or to refinance Indebtedness incurred in connection with a Permitted Acquisition or other permitted Investment, (5) any New Term Loans having an aggregate principal amount not exceeding the greater of $191,000,000 and 100% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as selected by the Parent Borrower and (6) any New Term Loans that constitutes a bridge facility (clauses (1), (2), (3), (4), (5) and (6), collectively, the “MFN Exceptions”); and ~~together~~ (v) to the extent such terms and documentation are materially more favorable to the New Term Loan Lenders than the terms of the existing Initial Term Loans or the existing Amendment No. 3 Term Loans (except to the extent permitted (or, for the avoidance of doubt, not prohibited) by clause (i), (ii), (iii) or (iv) above), they shall be either (A) reasonably satisfactory to the Administrative Agent (provided that no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Initial Term Loan Maturity Date or if such covenants or other provisions are added for the benefit of the Initial Term Loans or the Amendment No. 3 Term Loans, as applicable), (B) then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness or (C) applicable only to periods after the Initial Term Loan Maturity Date. (e) Incremental Revolving Credit ~~Commitment Increase,~~ Commitments and Incremental Revolving Credit Loans shall be identical to the ~~New~~ InitialAmendment No. 4 Revolving Credit Commitments and the ~~Term Commitment Increase~~related Revolving Credit Loans, other than the ~~“New Loan Commitments”;)~~ Maturity Date and as set forth in ~~an amount not~~ this Section 2.14(e); provided that notwithstanding anything to ~~exceed~~ the ~~sum of~~contrary in this Section 2.14 or otherwise:

Appears in 1 contract

Sources: Credit Agreement (Mirion Technologies, Inc.)

Appears in 1 contract

Incremental Facilities. (a) The ~~Borrower~~ Borrowers or any Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, ~~from time~~ by written notice to ~~time after~~ the ~~Closing Date~~Administrative Agent, ~~upon notice~~ request the establishment of one or more new tranches of term facilities denominated in Dollars or any other currency agreed to by the ~~Borrower to~~ applicable Borrower, the Administrative Agent and the ~~Person appointed by the Borrower to arrange an incremental~~ Lenders providing such New Term Loan Facility (each, an “Incremental Credit Facility”) (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the 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~~ New Term Loan ~~Tranche then outstanding~~ Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (~~which shall be on the same terms as, and become part of, the~~ together with any New Term Loan ~~Tranche proposed~~ Facility, an “Incremental Term Facility” and, any Loans made pursuant to ~~be increased hereunder (except as otherwise provided in clause (d~~an Incremental Term Facility, “Incremental Term Loans”) ~~below with respect to amortization)) (each, a “Term Commitment Increase”), (iii)~~ and/or request the ~~addition~~ establishment of one or more new ~~revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any ~~advance made by a Lender~~ Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, a “~~New~~ Incremental Revolving ~~Loan~~Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”~~; 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 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 amount not ~~to exceed~~ in excess of the sum of:,

Appears in 1 contract

Sources: Credit Agreement (Acuren Corp)

Appears in 1 contract

Sources: Credit Agreement (Snap One Holdings Corp.)

Incremental Facilities. (a) The Parent Borrower may, by written notice to the Administrative Agent at any time, on one or more occasions, request to (i) 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 facilities (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof or (z) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility. (b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender. (c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan. (d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans then outstanding and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans then outstanding, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred within 12 months of the Restatement Effective Date under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party and (ix) subject to clauses (i) and (ii) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by the Parent Borrower and lenders thereunder. All terms and documentation with respect to Incremental Facilities which are not substantially consistent from ~~time~~ those with respect to ~~time~~ the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the ~~Closing Date~~Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon ~~notice by~~ the ~~Borrower to~~ 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 ~~Person appointed~~ 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 ~~Borrower~~ Administrative Agent with the Parent ▇▇▇▇▇▇▇▇’s consent (not to ~~arrange an incremental Facility~~ be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto. (~~each~~e) Notwithstanding the foregoing, ~~an “~~no Incremental ~~Credit Facility”) (such Person (who~~ 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 ~~Administrative Agent, if it so agrees,~~ date on which such Loan is made or ~~(ii) any other Person appointed by the Borrower after consultation with the Administrative Agent)~~of such effectiveness, 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~~ conditions set forth in ~~the Commitments under any Revolving Tranche (which~~ Section 4.02 shall be on satisfied (it being understood that all references to “the ~~same terms as, and become part of,~~ occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the ~~Revolving Tranche proposed to be increased) (each, a “Revolving Credit Commitment Increase”~~Increased Amount Date), (ii) ~~an increase in any Term Loan Tranche then outstanding (which~~ the Administrative Agent shall be 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 ~~same terms as~~Restatement Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, ~~and become part of~~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 ~~Term Loan Tranche proposed to be increased~~ maximum amount of LC Exposure permitted hereunder ~~(except as otherwise provided in clause (d) below with respect to amortization)) (each~~shall increase by an amount, ~~a “Term Commitment Increase”)~~if any, ~~(iii)~~ agreed upon by Administrative Agent, the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice (each, a “New Revolving Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”; relevant Issuing Bank 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 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:Parent Borrower.

Appears in 1 contract

Sources: Credit Agreement (Coty Inc.)

Incremental Facilities. (a) The Borrower ~~may, from time to time after the Closing Date, upon~~ may by written notice ~~by the Borrower~~ to the Administrative Agent elect to request the establishment of one or more (xw) additional term loans, which may be of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the 118 commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term Loan Commitments”), (yx) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Loan Increase”) or a separate Class of Term C Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term C Loan Commitments”), (y) additional commitments consisting of one or more letter of credit facilities (such commitments, collectively, the “Incremental Letter of Credit Commitments”) and/or (z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loan Commitments and, the Incremental Term C Loan Commitments, the “ and the ~~Person appointed~~ Incremental Letter of Credit Commitments, the “Incremental Loan Commitments”), by an aggregate amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.1(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the ~~Borrower to arrange an incremental Facility~~ Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “~~Incremental Credit Facility~~Increased Amount Date”) ~~(such~~ on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (~~who~~ other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments may be elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) unless the ~~Administrative Agent~~immediately succeeding clause (y) is applicable, ~~if it so agrees,~~ no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (iiy) ~~any~~ if such Incremental Loan Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other ~~Person appointed~~ provisions of Section 11 as may otherwise be required by the ~~Borrower~~ Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after ~~consultation with the Administrative Agent), the “~~giving effect to such Incremental ~~Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof~~ Loan Commitment and the ~~proposed currency denomination thereof, request (i) an increase in the Commitments under~~ borrowing of 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”)~~Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Loan Commitments, on an ~~increase in any Term Loan Tranche then outstanding (which~~ Increased Amount Date, there shall be on no requirement for the ~~same terms as,~~ Borrower to bring down the representations and ~~become part of,~~ warranties under 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”)~~Credit Documents, (iii) the ~~addition of~~ Incremental Loan Commitments shall be effected pursuant to one or more ~~new revolving credit facilities~~ Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the ~~Facilities~~requirements set forth in Section 5.4(d) and (e), ~~in each case, in such currency or currencies as~~ and (iv) the Borrower ~~identifies~~ shall make any payments required pursuant to Section 2.11 in connection with the Incremental Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such ~~notice~~ increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Loan Increase, a part of the series of existing Term C Loans subject to such increase, and (c) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New 119 Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”). (b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to New Revolving Credit Commitments, each of the Revolving Credit Lenders with an existing Revolving Credit Commitment of the Class being increased by such New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each Revolving Credit Lender with a New Revolving Credit Commitment of such Class (each, a “New Revolving ~~Facility” and~~Loan Lender”), ~~any advance made by a Lender thereunder, a “~~and each of such New Revolving ~~Loan”;~~ Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such Revolving Credit Lender’s participations hereunder in outstanding Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the ~~commitments~~ percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Credit Lender holding Revolving Credit Loans (including each such New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit Commitments of all Revolving Credit Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the “Revolving Credit Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders under such Class and New Revolving ~~Commitment”) and (iv)~~ Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the addition of ~~one or more new term~~ such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan ~~facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ 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 ~~Facility~~Loan Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and conditions, (i) each Lender with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”; ) of any Series shall make a term loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series, and (ii) each Incremental Term Loan Lender of any ~~advance made by~~ Series shall become a Lender ~~thereunder~~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 “~~New~~ 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 ~~commitments thereof~~Incremental Revolving Credit Loans, collectively the 120 “Incremental Loans”) in an amount equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the Incremental Term C Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans. (d) The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, in each case effected pursuant to a Term Loan Increase or Term C Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term Loan Commitments or Incremental Term C Loan Commitments may be paid in connection with such Incremental Term Loan Commitments or Incremental Term C Loan Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related term letter of credit commitments, any excess cash collateral funded by such Incremental Term C Loans shall be withdrawn from the applicable funded term loan letter of credit cash collateral account. Any Incremental Loans incurred as a Term Loan Increase or Term C Loan Increase, as applicable, shall be fungible for the U.S. federal income tax purposes with the existing Class of Term Loans or Term C Loans, as applicable, proposed to be increased thereby. The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans of any Series not effected pursuant to a Term Loan Increase or Term C Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that: (i) [reserved]; (ii) [reserved]; (iii) the Incremental Term Loans, Incremental Term Loan Commitments, Incremental Term C Loans and Incremental Term C Loan Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to security with the First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured, secured solely by assets that do not constitute Collateral or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall either (I) not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor 121 Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable) or (II) be secured solely by assets that do not constitute Collateral; (iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental Term Loans or Incremental Term C Loans shall be determined by the Borrower and the lender(s) thereunder; provided, however, that, with respect to any broadly syndicated Dollar-denominated Incremental Term Loans or Incremental Term C Loans in the form of “term b loans” made under Incremental Term Loan Commitments or Incremental Term C Loan Commitments, if the Yield in respect of any Incremental Term Loans or Incremental Term C Loans that rank pari passu in right of payment and security with the 2018 Incremental Loans as of the date of funding thereof exceeds the Yield in respect of the 2018 Incremental Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable Term SOFR Margin, as applicable, in respect of such 2018 Incremental Term Loans shall be adjusted so that the Yield in respect of such 2018 Incremental Term Loans is equal to the Yield in respect of such Incremental Term Loans or Incremental Term C Loans minus 0.50%; provided, further, to the extent any change in the Yield of the 2018 Incremental Term Loans is necessitated by this clause (iv) on the basis of an effective interest rate floor in respect of the Incremental Term Loans or Incremental Term C Loans, the increased Yield in the 2018 Incremental Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Yield effected solely by increases in the interest rate floor(s) applicable to the 2018 Incremental Term Loans (this clause (iv), the “~~New~~ MFN Adjustment”); provided, further, that the MFN Adjustment shall not apply to Incremental Term ~~Commitment”;~~ Loans or Incremental Term C Loans (a) that mature on or after the twelve month anniversary of the 2018 Incremental Term Loan Maturity Date, (b) that are incurred after the twelve month anniversary of the Fifteenth Amendment Effective Date, (c) that are incurred in reliance on the Incremental Fixed Dollar Basket or, (d) that are incurred in reliance on the Incremental Prepayment Basket, (e) that do not exceed an aggregate principal amount of the greatest of (x) $2,500,000,000, (y) 50% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence and ~~together with~~ (z) 7.00% of Consolidated Total Assets as of the ~~Revolving Credit Commitment Increase,~~ last day of the ~~New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”;) in an amount not to exceed the sum of:~~most recently ended Test Period (calculated on

Appears in 1 contract

Incremental Facilities. (a) The ~~Borrower~~ Borrowers or any Guarantor or, solely in the case of a New Term Loan Facility denominated in an Alternative Currency, any Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent (any such Guarantor or Restricted Subsidiary for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, ~~from time~~ by written notice to ~~time after~~ the ~~Closing Date~~Administrative Agent, ~~upon notice~~ request the establishment of one or more new tranches of term facilities denominated in Dollars, an Alternative Currency or any other currency agreed to by the ~~Borrower to~~ applicable Borrower, the Administrative Agent and the ~~Person appointed by the Borrower to arrange an incremental~~ Lenders providing such New Term Loan Facility (each, an “Incremental Credit Facility”) (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the 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~~ New Term Loan ~~Tranche then outstanding (which shall be on~~ Facility”) and/or increase the ~~same terms as, and become part of,~~ principal amount of the Term ~~Loan Tranche proposed~~ Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be ~~increased hereunder~~ added to such Loans (~~except as otherwise provided in clause (d~~together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) ~~below with respect to amortization)) (each, a “Term Commitment Increase”), (iii)~~ and/or request the ~~addition~~ establishment of one or more new ~~revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any ~~advance made~~ Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Borrower have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum of (x) the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) and (ii) 100% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding, less any amount of Indebtedness incurred pursuant to clause (x)(i) of Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, (i) in case of Incremental Facilities that are secured on a pari passu basis with the Obligations, the First Lien Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (ii) in case of Incremental Facilities that are secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (iii) in case of Incremental Facilities that are unsecured, the Fixed Charge Coverage Ratio is greater than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Credit Facilities are fully drawn) and, in each instance, for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that Incremental Facilities (1) shall be incurred pursuant to clause (y) above prior to utilization of any capacity pursuant to clause (x) above, (2) amounts incurred in reliance on clause (x) above concurrently with amounts incurred in reliance on clause (y) above shall not be included as Indebtedness in the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, for purposes of calculating any amounts that may be incurred pursuant to clause (y) above on the same day and (3) if all or any portion of any Incremental Facility was originally incurred or issued in reliance on clause (x) above and thereafter such amount could have been incurred pursuant to clause (y) above, such amount of such Incremental Facility shall be reclassified, as the applicable Borrower may elect from time to time, as having been incurred pursuant to clause (y) above and thereafter shall not count as utilization of clause (x) above; provided, further, that, notwithstanding the foregoing or anything to the contrary set forth herein, (1) Incremental Term Loans may be incurred without regard to any of the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on or about the date of incurrence to permanently prepay and refinance Term Loans of any Tranche selected by the applicable Borrower on a dollar-for-dollar basis, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso, and (2) New Revolving Credit Facilities may be incurred without regard to the foregoing limits to the extent that such New Revolving Credit Facilities are used on or about the date of incurrence to refinance and permanently reduce Revolving Credit Commitments of any Tranche selected by Borrower on a dollar-for-dollar basis, and any such Revolving Credit Commitments thereunder (the “Refinancing Incremental Revolving Credit Commitments”) shall be deemed to have been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the applicable Incremental Facility shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender ~~thereunder~~or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) and by the L/C Issuer to the extent such consent, if any, would be required under Section 11.06 for an assignment of Loans or Revolving Credit Commitments (any such Affiliate or other Person, a “New ~~Revolving Loan~~Incremental Lender”; ) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the ~~commitments thereof, the “New Revolving Commitment”)~~ amounts of such allocations and (iviii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Credit Facility. Such Incremental Facility shall become effective as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Facility (except that, with respect to this clause (A), solely to the ~~addition~~ extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist), (B) both before and after giving effect to such Incremental Facility, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid (except, solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, (x) with respect to Section 5.02(a), such Incremental Facility shall only be subject to customary “funds certain provisions” and (y) with respect to Section 5.02(b), such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist); (C) any Incremental Facility provided by any New Incremental Lender shall be effected pursuant to one or more ~~new term loan facilities~~joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by a Borrower (or Additional Borrower, if applicable) and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. (b) The creation or provision of any Incremental Facility or Incremental Loan (and, in connection therewith, any amendment to the terms of this Agreement that is necessary or appropriate to implement the provisions thereof or that is favorable to the then-existing Lenders, in each case, as reasonably determined by the Administrative Agent in its sole discretion) shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment. (c) The terms and provisions of any New Revolving Credit Facility (other than pricing, maturity and fees) shall be, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the existing Revolving Credit Facility; provided that, (i) no New Revolving Credit Facility shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date of any Tranche of Revolving Credit Loans (or, in the case of Refinancing Incremental Revolving Credit Commitments, the final maturity date of the Tranche of Revolving Credit Commitments that are being refinanced), (ii) any guarantor of any New Revolving Credit Facility shall also be a Guarantor; provided, that, in the event any New Revolving Credit Facility is incurred by a Foreign Subsidiary of ESI, such ~~currency~~ New Revolving Credit Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (iii) if secured, such New Revolving Credit Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is materially more restrictive, when taken as a whole, to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or ~~currencies~~ may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent and (iv) each New Revolving Credit Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent). (d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Tranche B-2 Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the Tranche B-2 Term Loans, as applicable; provided that, except as otherwise set forth herein or in the joinder agreement set forth in clause (a), then (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity of the Tranche B-2 Term Loans, (or, in the case of any New Term Loans that are Refinancing Incremental Term Loans, the weighted average life to maturity of the Tranche of Term Loans that are being refinanced), (ii) the final maturity date with respect to any New Term Loans shall be no earlier than the maturity date of the Tranche B-2 Term Loans (or, in the case of any New Term Loans that are refinancing Incremental Term Loans, the final maturity date of the Tranche of Term Loans that are being refinanced), (iii) if the Yield on any New Term Loans incurred no later than 6 months after the Amendment No. 8 Funding Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the ~~Borrower identifies~~ “Yield Differential”) the Applicable Rate then in ~~such notice (each~~effect for any Tranche B-2 Term Loans, ~~a “~~then the Applicable Rate then in effect for Tranche B-2 Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term ~~Facility”;~~ Loans (and ~~any advance made by a Lender thereunder, a “~~if the margins on the New Term ~~Loan”; and~~ Loans are subject to a leveraged-based pricing grid, appropriate increases to the ~~commitments thereof~~Applicable Rates for the Tranche B-2 Term Loans, consistent with the foregoing, shall be made) (this clause (iii), the “MFN Adjustment”), (iv) any guarantor of any New Term ~~Commitment”~~Loan Facility shall also be a Guarantor; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (v) if secured, such New Term Loan Facility shall not be secured by any assets that do not constitute Collateral and ~~together~~ may not be secured pursuant to security documentation that is more restrictive to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (vi) each New Term Loan Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (vii) any New Term Loan Facility may be denominated in Euros or Pounds Sterling so long as (A) the borrower thereunder is a Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent and (B) such New Term Loan Facility is subject to guarantee, collateral and collateral allocation arrangements that are reasonably satisfactory to ESI and the Administrative Agent. Each joinder agreement referred to in Section 2.14(a) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, as reasonably determined by the Administrative Agent in its sole discretion, to effect the provision of this Section 2.14. (e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Tranche B-23 Term Loans or Initial Revolving Credit ~~Commitment Increase~~Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B-23 Term Loans or Initial Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Term SOFR Loan to be converted into a Base Rate Loan on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Term SOFR Loan, EURIBO Rate Loan or RFR Loan on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Term SOFR Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans are to be allocated to an existing Interest Period for a Term SOFR Loan or EURIBO Rate Loan then, subject to Section 2.08(b), the ~~New Revolving Commitments and the Term Commitment Increase, the “New~~ interest rate applicable to such Incremental Loan ~~Commitments”;) in an amount not to exceed the sum of:~~for th

Appears in 1 contract

Sources: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)

Incremental Facilities. ~~(a)~~ The Borrower ~~may, from time to time after the Closing Date, upon~~ may by written notice ~~by the Borrower~~ to the Administrative Agent elect to request the establishment of one or more (x) additional term loans, which may be of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term Loan Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Loan Increase”) or a separate Class of Term C Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term C Loan Commitments”) and/or (z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loan Commitments and the ~~Person appointed~~ Incremental Term C Loan Commitments, the “Incremental Loan Commitments”), by an aggregate amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the ~~Borrower to arrange an incremental Facility~~ Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “~~Incremental Credit Facility~~Increased Amount Date”) ~~(such~~ on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (~~who~~ other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments may be elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the ~~Administrative Agent~~immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if ~~it so agrees~~such Incremental Loan Commitment is being provided in connection with a Permitted Acquisition or other acquisition constituting a permitted Investment, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under (iiA) ~~any~~ Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other ~~Person appointed~~ provisions of Section 11 as may otherwise be required by the ~~Borrower~~ Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after ~~consultation with the Administrative Agent), the “~~giving effect to such Incremental ~~Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof~~ Loan Commitment and the ~~proposed currency denomination thereof, request (i) an increase in the Commitments under~~ borrowing of 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”)~~Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Loan Commitments, on an ~~increase in any Term Loan Tranche then outstanding (which~~ Increased Amount Date, there shall be on no requirement for the ~~same terms as~~Borrower to bring down the representations and warranties under the Credit Documents unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments (provided that, ~~and become part of~~in the case of Incremental Loans or Incremental Loan Commitments used to finance a Permitted Acquisition or other acquisition constituting a permitted Investment, only the ~~Term Loan Tranche proposed~~ Specified Representations (conformed as necessary for such acquisition) shall be required to be ~~increased hereunder (except as otherwise provided~~ true and correct in ~~clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”~~all material respects if requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments), (iii) the ~~addition of~~ Incremental Loan Commitments shall be effected pursuant to one or more ~~new revolving credit facilities~~ Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the ~~Facilities~~requirements set forth in Section 5.4(e), in each case, in such currency or currencies as the Borrower identifies in such notice (each, a “New Revolving Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”; and the commitments thereof, the “New Revolving Commitment”) and (iv) the ~~addition~~ Borrower shall make any payments required pursuant to Section 2.11 in connection with the Incremental Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of ~~one~~ this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or ~~more~~ (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Loan Increase, a part of the series of existing Term C Loans subject to such increase, and (c) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new ~~term loan facilities~~or existing series of Term Loans, ~~in each case~~Term C Loans or Revolving Credit Commitments, ~~in such currency or currencies as the Borrower identifies in such notice (~~each, a “~~New Term Facility~~Series”; 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:).

Appears in 1 contract

Incremental Facilities. (a) The ~~Borrower~~ Borrowers or any Guarantor or, solely in the case of a New Term Loan Facility denominated in an Alternative Currency, any Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent (any such Guarantor or Restricted Subsidiary for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, ~~from time~~ by written notice to ~~time after~~ the ~~Closing Date~~Administrative Agent, ~~upon notice~~ request the establishment of one or more new tranches of term facilities denominated in Dollars, an Alternative Currency or any other currency agreed to by the ~~Borrower to~~ applicable Borrower, the Administrative Agent and the ~~Person appointed by the Borrower to arrange an incremental~~ Lenders providing such New Term Loan Facility (each, an “Incremental Credit Facility”) (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the 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~~ New Term Loan ~~Tranche then outstanding (which shall be on~~ Facility”) and/or increase the ~~same terms as, and become part of,~~ principal amount of the Term ~~Loan Tranche proposed~~ Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be ~~increased hereunder~~ added to such Loans (~~except as otherwise provided in clause (d~~together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) ~~below with respect to amortization)) (each, a “Term Commitment Increase”), (iii)~~ and/or request the ~~addition~~ establishment of one or more new ~~revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any ~~advance made~~ Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Borrower have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum of (x) the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) and (ii) 100% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding, less any amount of Indebtedness incurred pursuant to clause (x)(i) of Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, (i) in case of Incremental Facilities that are secured on a pari passu basis with the Obligations, the First Lien Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (ii) in case of Incremental Facilities that are secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (iii) in case of Incremental Facilities that are unsecured, the Fixed Charge Coverage Ratio is greater than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Credit Facilities are fully drawn) and, in each instance, for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that Incremental Facilities (1) shall be incurred pursuant to clause (y) above prior to utilization of any capacity pursuant to clause (x) above, (2) amounts incurred in reliance on clause (x) above concurrently with amounts incurred in reliance on clause (y) above shall not be included as Indebtedness in the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, for purposes of calculating any amounts that may be incurred pursuant to clause (y) above on the same day and (3) if all or any portion of any Incremental Facility was originally incurred or issued in reliance on clause (x) above and thereafter such amount could have been incurred pursuant to clause (y) above, such amount of such Incremental Facility shall be reclassified, as the applicable Borrower may elect from time to time, as having been incurred pursuant to clause (y) above and thereafter shall not count as utilization of clause (x) above; provided, further, that, notwithstanding the foregoing or anything to the contrary set forth herein, (1) Incremental Term Loans may be incurred without regard to any of the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on or about the date of incurrence to permanently prepay and refinance Term Loans of any Tranche selected by the applicable Borrower on a dollar-for-dollar basis, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso, and (2) New Revolving Credit Facilities may be incurred without regard to the foregoing limits to the extent that such New Revolving Credit Facilities are used on or about the date of incurrence to refinance and permanently reduce Revolving Credit Commitments of any Tranche selected by Borrower on a dollar-for-dollar basis, and any such Revolving Credit Commitments thereunder (the “Refinancing Incremental Revolving Credit Commitments”) shall be deemed to have been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the applicable Incremental Facility shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender ~~thereunder~~or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) and by the L/C Issuer to the extent such consent, if any, would be required under Section 11.06 for an assignment of Loans or Revolving Credit Commitments (any such Affiliate or other Person, a “New ~~Revolving Loan~~Incremental Lender”; ) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the ~~commitments thereof, the “New Revolving Commitment”)~~ amounts of such allocations and (iviii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Credit Facility. Such Incremental Facility shall become effective as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Facility (except that, with respect to this clause (A), solely to the ~~addition~~ extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist), (B) both before and after giving effect to such Incremental Facility, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid (except, solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, (x) with respect to Section 5.02(a), such Incremental Facility shall only be subject to customary “funds certain provisions” and (y) with respect to Section 5.02(b), such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist); (C) any Incremental Facility provided by any New Incremental Lender shall be effected pursuant to one or more ~~new term loan facilities~~joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by a Borrower (or Additional Borrower, if applicable) and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. (b) The creation or provision of any Incremental Facility or Incremental Loan (and, in connection therewith, any amendment to the terms of this Agreement that is necessary or appropriate to implement the provisions thereof or that is favorable to the then-existing Lenders, in each case, as reasonably determined by the Administrative Agent in its sole discretion) shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment. (c) The terms and provisions of any New Revolving Credit Facility (other than pricing, maturity and fees) shall be, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the existing Revolving Credit Facility; provided that, (i) no New Revolving Credit Facility shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date of any Tranche of Revolving Credit Loans (or, in the case of Refinancing Incremental Revolving Credit Commitments, the final maturity date of the Tranche of Revolving Credit Commitments that are being refinanced), (ii) any guarantor of any New Revolving Credit Facility shall also be a Guarantor; provided, that, in the event any New Revolving Credit Facility is incurred by a Foreign Subsidiary of ESI, such ~~currency~~ New Revolving Credit Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (iii) if secured, such New Revolving Credit Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is materially more restrictive, when taken as a whole, to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or ~~currencies~~ may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent and (iv) each New Revolving Credit Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent). (d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Tranche B-12 Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the Tranche B-12 Term Loans, as applicable; provided that, except as otherwise set forth herein or in the joinder agreement set forth in clause (a), then (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity of the Tranche B-12 Term Loans, (or, in the case of any New Term Loans that are Refinancing Incremental Term Loans, the weighted average life to maturity of the Tranche of Term Loans that are being refinanced), (ii) the final maturity date with respect to any New Term Loans shall be no earlier than the maturity date of the Tranche B-12 Term Loans (or, in the case of any New Term Loans that are refinancing Incremental Term Loans, the final maturity date of the Tranche of Term Loans that are being refinanced), (iii) if the Yield on any New Term Loans incurred no later than 126 months after the ClosingAmendment No. 8 Funding Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the ~~Borrower identifies~~ “Yield Differential”) the Applicable Rate then in ~~such notice (each~~effect for any Tranche B-2 Term Loans, ~~a “~~then the Applicable Rate then in effect for Tranche B-2 Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term ~~Facility”;~~ Loans (and ~~any advance made by a Lender thereunder, a “~~if the margins on the New Term ~~Loan”; and~~ Loans are subject to a leveraged-based pricing grid, appropriate increases to the ~~commitments thereof~~Applicable Rates for the Tranche B-2 Term Loans, consistent with the foregoing, shall be made) (this clause (iii), the “MFN Adjustment”), (iv) any guarantor of any New Term ~~Commitment”~~Loan Facility shall also be a Guarantor; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (v) if secured, such New Term Loan Facility shall not be secured by any assets that do not constitute Collateral and ~~together~~ may not be secured pursuant to security documentation that is more restrictive to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (vi) each New Term Loan Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (vii) any New Term Loan Facility may be denominated in Euros or Pounds Sterling so long as (A) the borrower thereunder is a Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent and (B) such New Term Loan Facility is subject to guarantee, collateral and collateral allocation arrangements that are reasonably satisfactory to ESI and the Administrative Agent. Each joinder agreement referred to in Section 2.14(a) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, as reasonably determined by the Administrative Agent in its sole discretion, to effect the provision of this Section 2.14. (e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Tranche B-12 Term Loans or Initial Revolving Credit ~~Commitment Increase~~Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B-12 Term Loans or Initial Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Term SOFR Loan to be converted into a Base Rate Loan on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Term SOFR Loan, EURIBO Rate Loan or RFR Loan on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Term SOFR Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans are to be allocated to an existing Interest Period for a Term SOFR Loan or EURIBO Rate Loan then, subject to Section 2.08(b), the ~~New Revolving Commitments and the Term Commitment Increase, the “New Loan Commitments”;) in an amount not~~ interest rate applicable to ~~exceed the sum of:~~such Incrementa

Appears in 1 contract

Incremental Facilities. (a) ~~The~~ Any Borrower ~~may~~(including any Additional Borrower) or any other Guarantor may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, ~~from time to time after~~ the ~~Closing Date~~“New Term Loan Commitments”), ~~upon notice~~ (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the ~~Borrower~~ Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date), which may be incurred in Dollars, Euros or Sterling. In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrowers shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the ~~Person appointed by the Borrower~~ calculations and basis therefor and, subject to ~~arrange an incremental Facility (each~~reclassification as set forth in Section 10.1, ~~an “Incremental Credit Facility”) (~~classify such ~~Person (who may be~~ Indebtedness as being incurred under clause (i) ~~the Administrative Agent, if it so agrees,~~ or clause (ii) of the definition of “Maximum Incremental Facilities Amount”. The Borrowers may approach any Lender or any Person (other ~~Person appointed by~~ than a natural Person) to provide all or a portion of the ~~Borrower after consultation with~~ New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the ~~Administrative Agent)~~New Loan Commitments may elect or decline, ~~the “Incremental Arranger”) specifying the proposed Borrower (which may include~~ in its sole discretion, to provide a ~~Co-Borrower)~~New Loan Commitment. Subject to Section 1.12 in each case, ~~the proposed amount thereof and the proposed currency denomination thereof, request~~ such New Loan Commitments shall be subject to (i) ~~an increase in~~ no Event of Default under Section 11.1 or Section 11.5 (with respect to the ~~Commitments under any Revolving Tranche (which~~ Borrowers) shall be exist on ~~the same terms as~~such Increased Amount Date before or after giving effect to such New Loan Commitments, ~~and become part of, the Revolving Tranche proposed to be increased) (each, a “Revolving Credit Commitment Increase”)~~as applicable, (ii) ~~an increase in any Term~~ the New Loan ~~Tranche then outstanding (~~Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers and Administrative Agent, and each of which shall be on recorded in the ~~same terms as~~Register and shall be subject to the requirements set forth in Section 5.4(e), 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~~ 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 ~~one~~ the Borrowers and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or ~~more new revolving credit facilities~~ (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Revolving Credit Loans for all purposes of this Agreement. Notwithstanding anything else to the ~~Facilities~~contrary in this Section 2.14 or otherwise in this Agreement, in any Incremental Loans may be incurred by any Borrower(s) and/or any other Credit Party at the option of the Borrowers. (b) Incremental Revolving Credit Commitments shall be subject to the satisfaction of the following terms and conditions, (a) with respect to New Revolving Credit Commitments, each ~~case, in~~ of the Lenders with Revolving Credit Commitments of such ~~currency or currencies as the Borrower identifies in such notice~~ Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving ~~Facility”~~ Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, ~~any advance~~ each Loan made by under a ~~Lender thereunder,~~ New Revolving Credit Commitment (a “New Revolving Credit Loan”; ) and ~~the commitments thereof~~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 ~~Commitment~~Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (ivnot to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the ~~addition~~ extent such consent, if any, would be required under Section 13.6(b) for an assignment of ~~one~~ Revolving Loans or ~~more new term loan facilities~~Revolving Credit Commitments, in as applicable, to such Lender or Incremental Revolving Loan Lender. (c) New Term Loan Commitments of any Series shall be subject to the satisfaction of the following terms and conditions, (i) each ~~case, in such currency or currencies as the Borrower identifies in such notice~~ Lender with a New Term Loan Commitment (each, a “New Term ~~Facility~~Loan Lender”~~; and~~ ) of any ~~advance made by~~ Series shall make a ~~Lender thereunder,~~ Loan to the Borrowers (a “New Term Loan~~”; and~~ ” and, together with the ~~commitments thereof~~Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term ~~Commitment~~Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrowers; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Tranche B-6-7 Term Loan Maturity Date; (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the remaining weighted average life to maturity of the then existing Tranche B-6-7 Term Loans (provided that the foregoing clauses (i) and (ii) shall not apply to (A) up to the greater of (x) $1,100,000,000 and (y) 100% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) in New Term Loans as selected by the Borrowers, (B) customary bridge loans (including 364-day bridge loans); provided, that either (x) the terms of such bridge loans provide for automatic extension of the maturity date thereof to a date that is not earlier than the Tranche B-6-7 Term Loan Maturity Date or (y) any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of clauses (i) and (ii), (C) customary term A loans and (D) Indebtedness issued subject to customary escrow arrangements that have redemption requirements related to such escrow release (so long as subject to such escrow)), (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrowers and the Lenders thereunder; provided, that except with respect to (A) up to the greater of (x) $1,100,000,000 and (y) 100% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) of New Term Loans (as selected by the Borrowers), (B) customary term A loans, (C) customary bridge loans (including 364-day bridge loans) (provided that any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (iii)) and (D) New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment, with respect to any such non-excepted New Term Loans in the form of a broadly syndicated U.S. dollar denominated term “B” loan that is secured on a pari passu basis with the Tranche B-5 Term Loans incurred pursuant to clause (i)(a) of the definition of “Maximum Incremental Facilities Amount” that matures earlier than one year after the Tranche B-5 Term Loan Maturity Date, only during the period commencing on the Amendment No. 6 Effective Date and ending on the date that is 12 months after the Amendment No. 6 Effective Date, if the Applicable Margin for SOFR Loans in respect of such New Term Loans exceeds the Applicable Margin for SOFR Loans in respect of the then existing Tranche B-5 Term Loans by more than 0.75%, the Applicable Margin for SOFR Loans in respect of the then existing Tranche B-5 Term Loans shall be adjusted so that the Applicable Margin in respect of the then existing Tranche B-5 Term Loans that are SOFR Loans is equal to the Applicable Margin for SOFR Loans in respect of such New Term Loans minus 0.75% (the “Tranche B-5 MFN Protection”), (iv) to the extent such terms and documentation are not consistent with the then existing Tranche B-5 Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall either (x) reflect market terms and conditions (as determined by the Borrowers in good faith) at the time of incurrence or issuance of New Term Loans (or the obtaining of a commitment with respect thereto) or (y) be reasonably satisfactory to the Administrative Agent (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the then-Latest Term Loan Maturity Date), (v) any New Term Loans may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 5.1 and (B) on a pro rata or less than pro rata basis (but not on a greater than pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such New Term Loans) in any mandatory prepayment of Term Loans required pursuant to Section 5.2, (vi) New Term Loans may not be guaranteed by any Person which is not a Credit Party and (vii) if secured, any New Term Loans may not be secured by assets that do not constitute Collateral. For the avoidance of doubt, all parties to this Agreement hereby agree that the proviso to clause (iii) of this paragraph (d) does not apply with respect to any Tranche B-2 Term Loans and/or Tranche B-4 Term Loans (all of which such “MFN” protections have expired prior to the Amendment No. 6 Effective Date) and/or any Tranche B-6 Term Loans (all of which such “MFN” protection (if any) has expired and/or not been set and/or not been renewed) and/or any Tranche B-7 Term Loans (all of which such “MFN” protection (if any) has expired and/or not been set and/or not been renewed). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank equal in right of payment and ~~together~~ of security with the Revolving Credit ~~Commitment Increase, the New Revolving Commitments~~ Loans and the Term ~~Commitment Increase~~Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments, (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to the provisions of Section 2.1(e) and Section 3.12 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that the Borrowers shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (viii) the pricing, fees, maturity and other immaterial terms of the Additional Revolving Credit Loans may be different and shall be determined by the Borrowers and the Lenders thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the ~~“New Loan Commitments”;) in an amount not~~ maturity date or the remaining weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans. (ix) to ~~exceed~~ the ~~sum of:~~extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after th

Appears in 1 contract

Sources: Credit Agreement (GoDaddy Inc.)

Incremental Facilities. ~~(a) The~~ Subject to the terms and conditions set forth herein, the Borrower ~~may~~shall have the right, at any time and from time to time ~~after~~ prior to the ~~Closing~~ Revolving Commitment Termination Date, ~~upon notice by~~ to incur additional Indebtedness under this Agreement in an aggregate amount of up to $200,000,000 (each, an “Incremental Facility”) which may be borrowed in the ~~Borrower~~ form of (a) one or more increases to the Revolving Committed Amount (the “Additional Revolving Loans”) and/or (b) a term loan facility (the “Additional Term Loan”; together with any Additional Revolving Loans, the “Additional Loans”), in an aggregate amount of up to $200,000,000. The following terms and conditions shall apply: (i) the aggregate amount of all Additional Loans shall not at any time exceed $200,000,000, (ii) any Additional Revolving Loans shall have the same terms as the existing Revolving Loans, (iii) the terms and conditions of any Additional Term Loans shall be reasonably satisfactory to the Administrative Agent and the ~~Person appointed by~~ Additional Loan Lenders (as such term is defined below), (iv) the ~~Borrower~~ loans made under any Incremental Facility shall constitute Credit Party Obligations, (v) any Additional Term Loan shall not have a shorter maturity or weighted average life than the Term Loan, and shall have other terms and conditions reasonably acceptable to ~~arrange an incremental Facility (each, an “Incremental Credit Facility”) (such Person (who may be (i)~~ the Administrative Agent, ~~if it so agrees, or~~ (iivi) any Additional Loans shall be entitled to the same voting rights as the existing Loans and shall be entitled to receive proceeds of prepayments on the same basis as comparable Loans, (vii) the Borrower shall have received commitments from one or more existing Lenders or from other ~~Person appointed~~ banks, financial institutions or investment funds, in each case in accordance with the terms set forth below (such Persons being referred to herein as the “Additional Loan Lenders”); provided that no existing Lender shall be required to provide a commitment with respect to such Incremental Facility, (viii) each Additional Loan shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof, (ix) the proceeds of any Additional Loans will be used to finance capital expenditures and working capital and other general corporate purposes, including Permitted Acquisitions, (x) the Borrower shall execute such promissory notes as are necessary and requested by the Additional Loan Lenders to reflect the Additional Loans, (ix) the interest rate margins with respect to any Additional Term Loan shall be determined by the Borrower ~~after consultation with~~ and the Additional Term Loan lenders providing such Additional Term Loan, (x) the conditions to Extensions of Credit in Section 4.1(b) and (c) and Section 4.2 shall have been satisfied and (xi) the Administrative Agent shall have received from the Borrower an Officer’s Certificate, in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, after giving effect to any such Additional Loan, the Borrower will be (A) in compliance with the Senior Secured Leverage Incurrence Test and (B) in pro forma compliance with all financial covenants set forth in Section 6.6. The Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent to join this Credit Agreement as Lenders hereunder for a portion of the Additional Loans, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request. In the case of Additional Revolving Loans, the existing Lenders shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 9.6(c)) of the outstanding Revolving Loans and Participation Interests to the Additional Loan Lenders providing any Additional Revolving Loans so that, after giving effect to such assignments, each Lender holding a Revolving Commitment (including such Additional Loan Lenders) will hold Revolving Loans and Participation Interests equal to its Commitment Percentage of all outstanding Revolving Loans, Swingline Loans and LOC Obligations. Notwithstanding any provision of this Credit Agreement to the contrary, the Administrative Agent is authorized (with the consent of the Borrower and the Additional Loan Lenders), ~~the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower)~~to enter into, ~~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 behalf of ~~one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice (each, a “New Revolving Facility” and~~all Lenders, any ~~advance made by a Lender thereunder~~amendment, ~~a “New Revolving Loan”; and~~ modification or supplement to this Credit Agreement or any other Credit Document as may be necessary to incorporate the ~~commitments thereof, the “New Revolving Commitment”) and (iv) the addition~~ terms of ~~one or more new term loan facilities, in each case, in such currency or currencies as the Borrower identifies in such notice (each, a “New Term Facility”; and~~ any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term 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:Additional Loans.

Appears in 1 contract

Sources: Credit Agreement (Pantry Inc)

Incremental Facilities. (a) The Borrower may, ~~from time~~ by written notice to ~~time after~~ Administrative Agent, elect to request the ~~Closing Date~~establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, ~~upon notice~~ the “New Term Loan Commitments”), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”) by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date), which may be incurred in Dollars, Euros or Pounds Sterling. In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the ~~Person appointed by the Borrower~~ calculations and basis therefor and, subject to ~~arrange an incremental Facility (each~~reclassification as set forth in Section 10.1, ~~an “Incremental Credit Facility”) (~~classify such ~~Person (who may be~~ Indebtedness as being incurred under clause (i) ~~the Administrative Agent, if it so agrees,~~ or clause (ii) of the definition of Maximum Incremental Facilities Amount. The Borrower may approach any Lender or any Person (other ~~Person appointed by~~ than a natural Person) to provide all or a portion of the ~~Borrower after consultation with~~ New Loan Commitments, subject, if applicable, to the ~~Administrative Agent~~proviso to Section 2.14(b); provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, on each applicable Increased Amount Date (subject to Section 1.12), ~~the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request~~ such New Loan Commitments shall be subject to (i) no Event of Default (except in connection with an ~~increase in the Commitments~~ acquisition or investment (including any Permitted Acquisition or Investment), no Event of Default under ~~any Revolving Tranche (which~~ Section 11.1 or Section 11.5) shall be exist on ~~the same terms as~~such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable, and ~~become part of, the Revolving Tranche proposed~~ subject to ~~be increased) (each, a “Revolving Credit Commitment Increase”)~~Section 1.12, (ii) ~~an increase in any Term~~ the New Loan ~~Tranche then outstanding (~~Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be on recorded in the ~~same terms as~~Register and shall be subject to the requirements set forth in Section 5.4(e), 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~~ Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans shall, at the election of ~~one~~ the Borrower and agreed to by Lenders providing such New Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or ~~more new revolving credit facilities~~ (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement. (b) Incremental Revolving Credit Commitments shall be subject to the ~~Facilities~~satisfaction of the following terms and conditions, in (a) with respect to New Revolving Credit Commitments, each ~~case, in~~ of the Lenders with Revolving Credit Commitments of such ~~currency or currencies as the Borrower identifies in such notice~~ Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving ~~Facility”~~ Loan Lender”) and each of the new Revolving Loan Lenders shall purchase from each of the Lenders with revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such new Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, ~~any advance~~ each Loan made by under a ~~Lender thereunder,~~ New Revolving Credit Commitment (a “New Revolving Credit Loan”; ) and ~~the commitments thereof~~each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with new Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Loans and (ii) each New Revolving ~~Commitment~~Loan Lender and each Lender with an Additional Revolving Credit Commitment (each, an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and the Letter of Credit Issuer shall have consented (ivnot to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the ~~addition~~ extent such consent, if any, would be required under Section 13.6(b) for an assignment of ~~one~~ Revolving Loans or ~~more new term loan facilities~~Revolving Credit Commitments, in as applicable, to such Lender or Incremental Revolving Loan Lender. (c) New Term Loan Commitments of any Series shall be subject to the satisfaction of the foregoing and following terms and conditions, (i) each ~~case, in such currency or currencies as the Borrower identifies in such notice~~ Lender with a New Term Loan Commitment (each, a “New Term ~~Facility~~Loan Lender”~~; and~~ ) of any ~~advance made by~~ Series shall make a ~~Lender thereunder,~~ Loan to the Borrower (a “New Term Loan~~”; and~~ ” and, together with the ~~commitments thereof~~Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term ~~Commitment~~Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Tranche B Term Loan Maturity Date; (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the then existing Tranche B-1 Term Loans or Tranche B-3 Term Loans as calculated without giving effect to any prepayments made in connection with the Tranche B-1 Term Loans or Tranche B-3 Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) above, amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that only during the period commencing on the Closing Date and ending on the thirty month anniversary of the Closing Date, if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New Term Loans consisting of Term Loans that are secured by the Collateral on a pari passu basis with the Tranche B-1 Term Loans and the Tranche B-3 Term Loans (other than any New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment) exceeds the Effective Yield for LIBOR Loans or ABR Loans in respect of the then existing Tranche B-1 Term Loans or Tranche B-3 Term Loans of like currency by more than 0.50%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the then existing Tranche B-1 Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Tranche B-1 Term Loans or Tranche B-3 Term Loans, as applicable, is equal to the Effective Yield for LIBOR Loans or ABR Loans in respect of the New Term Loans minus 0.50% (the terms of this proviso to this clause (iii), the “MFN Protection”); and ~~together~~ (iv) to the extent such terms and documentation are not consistent with the then existing Tranche B-1 Term Loans or Tranche B-3 Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Term Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date);. (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank equal in right of payment and of security with the Revolving Credit ~~Commitment Increase, the New Revolving Commitments~~ Loans and the Term ~~Commitment Increase~~Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments, (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the ~~“New Loan~~ maturity date of the Incremental Revolving Credit Commitments~~”;)~~ , and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to the provisions of Section 3.12 and Section 3A.12 to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 3.12, without giving effect to changes thereto on an ~~amount not~~ earlier maturity date with respect to ~~exceed the sum of:~~Letters of Credit theretofore incurred or issued in respect of such Series),

Appears in 1 contract

Sources: Joinder Agreement and Amendment No. 5 (BrightSpring Health Services, Inc.)

Incremental Facilities. (a) ~~The~~ Parent Borrower ~~may~~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 Borrower~~ to the Administrative Agent ~~and~~ (an “Incremental Borrowing Notice”), to request (A) (i) one or more new commitments which may be of the ~~Person appointed by~~ same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans be made pursuant to one or more additional tranches of term loans under this Agreement (collectively with any Term Loan Increase, the ~~Borrower to arrange an incremental~~ “Incremental Term Loan Facilities”), and/or (B) one or more increases in the aggregate commitments under the Initial Revolving Facility (each, an “Incremental ~~Credit Facility~~Revolving Increase”) (~~such Person (who may be (i)~~ which may, with respect to any Incremental Revolving Increase, at the ~~Administrative Agent, if it so agrees, or (ii) any other Person appointed by the~~ election of Parent Borrower ~~after consultation~~ and with the ~~Administrative Agent)~~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 ~~Arranger~~Initial Revolving Loans”) ~~specifying~~ (and each of the ~~proposed Borrower (which may include a Co-Borrower~~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 ~~proposed~~ 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(except as set forth in Section 2.16(a)(6)) and pursuant to the same documentation as the Initial Term Loan Facility on the date of such increase (other than the Incremental Amendment evidencing such increase) and shall be added to (and form part of) each Borrowing of outstanding Term Loans under the applicable Class of Term Loans on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans of such Class; (5) the yield applicable to any Incremental Initial Revolving Facility shall be equal to the corresponding yield on the Initial Revolving Facility (calculated for such Incremental Initial Revolving Facility and Initial Revolving Facility inclusive of any OID and/or upfront fee percentage paid to all Lenders, but exclusive of any arrangement, underwriting or similar fees); provided, that Parent Borrower may increase the pricing of the Initial Revolving Facility, without the consent of the Administrative Agent or any Lender, such that the foregoing is true, including increasing the Applicable Margin, the Commitment Fee, adding or increasing an existing Eurodollar Rate floor (if applicable), and ~~become part of~~paying additional OID and/or upfront fees; (6) (A) in the case of a Term Loan Increase under an Incremental Term Loan Facility, shall have the Applicable Margin and amortization for the Class being increased or in the case of the Applicable Margin, higher than the Applicable Margin for the Class being increased as long as the Applicable Margin for the Class being increased shall be automatically increased as and to the extent necessary to eliminate such deficiency and (B) in the case of a new Class of Incremental Term Loans under an Incremental Term Loan Facility, the ~~Revolving Tranche proposed~~ All-In Yield applicable to such Incremental Term Loans shall not be ~~increased~~greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Initial Term Loans, plus fifty (50) basis points per annum unless the interest rate (together with, as provided in the proviso below, the Eurodollar Rate or Base Rate floor) with respect to the Initial Term Loans is increased so as to cause the then applicable All-In Yield under this Agreement on the Initial Term Loans to equal the All-In Yield then applicable to the Incremental Term Loans, minus fifty (50) points; provided if such Incremental Term Loan includes an Eurodollar Rate floor greater than 1.00% per annum or a Base Rate floor greater than 2.00% per annum, such differential between the Eurodollar Rate or Base Rate floors shall be equated to the applicable All-In Yield for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the Eurodollar Rate or Base Rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the Eurodollar Rate or Base Rate floor (but not the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such differential between the Eurodollar Rate or Base Rate floors; (7) (~~each~~A) the maturity of any Incremental Term Loan Facility shall not be earlier than the Latest Maturity Date of the Initial Term Loans and (B) on the date of the incurrence of such Incremental Term Loans, the Weighted Average Life to Maturity of any Incremental Term Loan Facility shall not be shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loan Facility; (8) the Incremental Term Loan Facilities may participate on a “pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments with other then outstanding Classes of Term Loans; (9) the covenants and events of default of any new Class of Incremental Term Loans under an Incremental Term Loan Facility may differ from the terms of the then existing Term Loan Facility; provided that the terms that are not substantially identical to the then existing Term Loan Facility (other than pursuant to the foregoing clauses (1) through (8) above), (A) shall be as mutually agreed upon between Parent Borrower and lenders providing such Incremental Term Loan Facility and reasonably satisfactory to the Administrative Agent and (B) shall not be more restrictive to Parent Borrower or any other Borrower, when taken as a whole, than the terms of the then existing Term Loan Facility unless (1) Lenders under the existing Term Loan Facility also receive the benefit of such more restrictive terms pursuant to an amendment or amendments to the Loan Documents subject solely to the reasonable satisfaction of the Administrative Agent (without any consent of any other Secured Creditor being required) or (2) any such provisions apply after the Latest Maturity Date of the Term Loans; and (10) Incremental Term Loan Facilities shall be requested in minimum amounts of $2,500,000 or a higher multiple of $1,000,000 and (y) Incremental Revolving Increases shall be requested in minimum amounts of $1,000,000 or a higher multiple of $1,000,000. (b) The proceeds of each Incremental Facility may be used for working capital and other general corporate purposes, including the financing of Acquisitions or other Investments and any other purpose not prohibited by this Agreement and as agreed to by the Parent Borrower and the lenders providing such Incremental Facility. (c) The commitments in respect of any Incremental Facilities may be denominated in U.S. Dollars and/or other currencies as agreed among Parent Borrower, the Administrative Agent and the lenders providing such Incremental Facilities. Each Incremental Borrowing Notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Credit ~~Commitment Increase”)~~Commitments being requested, (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than five (5) Business Days nor more than sixty (60) days after the date of Incremental Borrowing Notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments, if any, are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). (d) Any Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and Additional Lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. Commitments in respect of Incremental Facilities shall become Commitments (or in the case of an Incremental Revolving Increase to be provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment), under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parent Borrower, any ~~Term Loan Tranche then outstanding (which shall be on the same terms as~~Additional Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and ~~become part of~~the Administrative Agent. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent, each LC Issuer and the Swing Line Lender shall have consented to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if any such consent would be required under Section 10.12(b) for an assignment of Loans or Revolving Commitments, as applicable, to such Lender or Additional Lender. Each Incremental Amendment shall specify the terms of the Incremental Term Loans or Incremental Initial Revolving Loans, as applicable, to be made thereunder, consistent with the provisions set forth in this Section 2.16. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, the Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower, to effect the provisions of this Section 2.16, notwithstanding any requirements of Section 10.12 (including, in the case of Incremental Term ~~Loan Tranche proposed~~ Loans structured as a separate Class, the incorporation of class voting rights that prevent Lenders from agreeing to modifications that would allocate (or reallocate) payments to the Lenders in a non-pro rata manner unless such modifications are agreed to by all of the Lenders holding the Loans or Incremental Term Loans or Incremental Revolving Credit Commitments whose payment rights are being modified). (e) Upon each Incremental Revolving Increase, each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be ~~increased hereunder (except as otherwise provided in clause (d) below with respect~~ deemed to ~~amortization))~~ have assigned to each Lender providing a portion of the Incremental Revolving Increase (each, a an “~~Term Commitment Increase~~Incremental Initial Revolving Facility Lender”)) in respect of such increase, ~~(iii) the addition of one or more new revolving credit facilities~~ and each such Incremental Initial Revolving Facility Lender will automatically and without further act be deemed to ~~the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice (each~~have assumed, a ~~“New Revolving Facility” and~~portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, ~~any advance made by a Lender thereunder, a “New Revolving Loan”;~~ after giving effect to each such deemed assignment and ~~the commitments thereof~~assumption of participations, the ~~“New Revolving Commitment”~~percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (ivB) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Initial Revolving Facility Lender) will equal the ~~addition~~ percentage of ~~one or more new term loan facilities, in each case, in such currency or currencies as~~ the Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment”; and together with the Revolving Credit Commitment Increase, the New aggregate Revolving Commitments ~~and the Term~~ of such Class of all Lenders represented by such Lender’s Revolving Commitment ~~Increase, the “New Loan Commitments”;) in an amount not to exceed the sum of:~~of such

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Sources: Credit Agreement (PGT, Inc.)

Incremental Facilities. (a) The ~~Borrower~~ Borrowers or any Guarantor or, solely in the case of a New Term Loan Facility denominated in an Alternative Currency, any Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent (any such Guarantor or Restricted Subsidiary for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, ~~from time~~ by written notice to ~~time after~~ the ~~Closing Date~~Administrative Agent, ~~upon notice~~ request the establishment of one or more new tranches of term facilities denominated in Dollars, an Alternative Currency or any other currency agreed to by the ~~Borrower to~~ applicable Borrower, the Administrative Agent and the ~~Person appointed by the Borrower to arrange an incremental~~ Lenders providing such New Term Loan Facility (each, an “Incremental Credit Facility”) (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (i) an increase in the 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~~ New Term Loan ~~Tranche then outstanding (which shall be on~~ Facility”) and/or increase the ~~same terms as, and become part of,~~ principal amount of the Term ~~Loan Tranche proposed~~ Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be ~~increased hereunder~~ added to such Loans (~~except as otherwise provided in clause (d~~together with any New Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) ~~below with respect to amortization)) (each, a “Term Commitment Increase”), (iii)~~ and/or request the ~~addition~~ establishment of one or more new ~~revolving credit facilities to the Facilities, in each case, in such currency or currencies as the Borrower identifies in such notice~~ tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any ~~advance made~~ Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Borrower have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum of (x) the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) and (ii) 100% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding, less any amount of Indebtedness incurred pursuant to clause (x)(i) of Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, (i) in case of Incremental Facilities that are secured on a pari passu basis with the Obligations, the First Lien Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (ii) in case of Incremental Facilities that are secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (iii) in case of Incremental Facilities that are unsecured, the Fixed Charge Coverage Ratio is greater than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Credit Facilities are fully drawn) and, in each instance, for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that Incremental Facilities (1) shall be incurred pursuant to clause (y) above prior to utilization of any capacity pursuant to clause (x) above, (2) amounts incurred in reliance on clause (x) above concurrently with amounts incurred in reliance on clause (y) above shall not be included as Indebtedness in the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, for purposes of calculating any amounts that may be incurred pursuant to clause (y) above on the same day and (3) if all or any portion of any Incremental Facility was originally incurred or issued in reliance on clause (x) above and thereafter such amount could have been incurred pursuant to clause (y) above, such amount of such Incremental Facility shall be reclassified, as the applicable Borrower may elect from time to time, as having been incurred pursuant to clause (y) above and thereafter shall not count as utilization of clause (x) above; provided, further, that, notwithstanding the foregoing or anything to the contrary set forth herein, (1) Incremental Term Loans may be incurred without regard to any of the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on or about the date of incurrence to permanently prepay and refinance Term Loans of any Tranche selected by the applicable Borrower on a dollar-for-dollar basis, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso, and (2) New Revolving Credit Facilities may be incurred without regard to the foregoing limits to the extent that such New Revolving Credit Facilities are used on or about the date of incurrence to refinance and permanently reduce Revolving Credit Commitments of any Tranche selected by Borrower on a dollar-for-dollar basis, and any such Revolving Credit Commitments thereunder (the “Refinancing Incremental Revolving Credit Commitments”) shall be deemed to have been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the applicable Incremental Facility shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender ~~thereunder~~or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) and by the L/C Issuer to the extent such consent, if any, would be required under Section 11.06 for an assignment of Loans or Revolving Credit Commitments (any such Affiliate or other Person, a “New ~~Revolving Loan~~Incremental Lender”; ) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the ~~commitments thereof, the “New Revolving Commitment”)~~ amounts of such allocations and (iviii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Credit Facility. Such Incremental Facility shall become effective as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Facility (except that, with respect to this clause (A), solely to the ~~addition~~ extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist), (B) both before and after giving effect to such Incremental Facility, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid (except, solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, (x) with respect to Section 5.02(a), such Incremental Facility shall only be subject to customary “funds certain provisions” and (y) with respect to Section 5.02(b), such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist); (C) any Incremental Facility provided by any New Incremental Lender shall be effected pursuant to one or more ~~new term loan facilities~~joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by a Borrower (or Additional Borrower, if applicable) and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. (b) The creation or provision of any Incremental Facility or Incremental Loan (and, in connection therewith, any amendment to the terms of this Agreement that is necessary or appropriate to implement the provisions thereof or that is favorable to the then-existing Lenders, in each case, as reasonably determined by the Administrative Agent in its sole discretion) shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment. (c) The terms and provisions of any New Revolving Credit Facility (other than pricing, maturity and fees) shall be, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the existing Revolving Credit Facility; provided that, (i) no New Revolving Credit Facility shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date of any Tranche of Revolving Credit Loans (or, in the case of Refinancing Incremental Revolving Credit Commitments, the final maturity date of the Tranche of Revolving Credit Commitments that are being refinanced), (ii) any guarantor of any New Revolving Credit Facility shall also be a Guarantor; provided, that, in the event any New Revolving Credit Facility is incurred by a Foreign Subsidiary of ESI, such ~~currency~~ New Revolving Credit Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (iii) if secured, such New Revolving Credit Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is materially more restrictive, when taken as a whole, to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or ~~currencies~~ may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent and (iv) each New Revolving Credit Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent). (d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Tranche B-1 Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the Tranche B-1 Term Loans, as applicable; provided that, except as otherwise set forth herein or in the joinder agreement set forth in clause (a), then (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity of the Tranche B-1 Term Loans, (or, in the case of any New Term Loans that are Refinancing Incremental Term Loans, the weighted average life to maturity of the Tranche of Term Loans that are being refinanced), (ii) the final maturity date with respect to any New Term Loans shall be no earlier than the maturity date of the Tranche B-1 Term Loans (or, in the case of any New Term Loans that are refinancing Incremental Term Loans, the final maturity date of the Tranche of Term Loans that are being refinanced), (iii) if the Yield on any New Term Loans incurred no later than 12 months after the Closing Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the ~~Borrower identifies~~ “Yield Differential”) the Applicable Rate then in ~~such notice (each~~effect for any Term Loans, ~~a “~~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 ~~Facility”;~~ Loans (and ~~any advance made by a Lender thereunder, a “~~if the margins on the New Term ~~Loan”; and~~ Loans are subject to a leveraged-based pricing grid, appropriate increases to the ~~commitments thereof~~Applicable Rates for the Term Loans, consistent with the foregoing, shall be made) (this clause (iii), the “MFN Adjustment”), (iv) any guarantor of any New Term ~~Commitment”~~Loan Facility shall also be a Guarantor; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (v) if secured, such New Term Loan Facility shall not be secured by any assets that do not constitute Collateral and ~~together~~ may not be secured pursuant to security documentation that is more restrictive to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (vi) each New Term Loan Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (vii) any New Term Loan Facility may be denominated in Euros or Pounds Sterling so long as (A) the borrower thereunder is a Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent and (B) such New Term Loan Facility is subject to guarantee, collateral and collateral allocation arrangements that are reasonably satisfactory to ESI and the Administrative Agent. Each joinder agreement referred to in Section 2.14(a) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, as reasonably determined by the Administrative Agent in its sole discretion, to effect the provision of this Section 2.14. (e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Tranche B-1 Term Loans or Initial Revolving Credit ~~Commitment Increase~~Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B-1 Term Loans or Initial Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Eurocurrency Rate Loan or RFR Loan to be converted into a Base Rate Loan on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Eurocurrency Rate LoansLoan or RFR Loan on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Eurocurrency Rate Loans or RFR Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans is to be allocated to an existing Interest Period for a Eurocurrency Rate Loan then, subject to Section 2.08(b), the ~~New Revolving Commitments and~~ interest rate applicable to such Incremental Loan for the ~~Term Commitment Increase, the “New Loan Commitments”;) in an amount not to exceed the sum of:~~remainder of such Interest P

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